Roth v. Insley

Citations

• 86 Cal. 134
• 24 P. 853
• 1890 Cal. LEXIS 987

Syllabus

<p>Homestead — Exemption from Execution — Dissolution oe Family. — Under section 1265 of the Civil Code as amended in 1880, providing that a homestead once declared upon remains as such always exempt from forced sale as against any liability of the owner, except as otherwise provided, a homestead set apart under section 1261, subdivision 6, of the Civil Code, by a son, with whom his mother resided under his care and maintenance, does not cease to be exempt from execution for a debt of the son, because he has ceased to be the head of a family, owing to the death of the mother.</p> <p>Id,—Injunction — Enjoining Sale oe Homestead—Cloud on Title.— The sale of a homestead under execution for a debt for which the homestead is exempt, though void under the statute, casts a cloud upon the title to the property, and the owner is entitled to have the sale enjoined, as it would be necessary, in an action of ejectment by the purchaser under the exeeution sale, for the owner to introduce extrinsic evidence to show that the execution sale, valid on its face and under a valid judgment against him, did not pass title to the property.</p> <p>Id. — Threatened Irreparable Injury. — A complaint setting out facts showing that a cloud upon the title to property was threatened by an execution sale of plaintiff’s homestead, and would be accomplished unless an injunction issued, sets up facts showing threatened irreparable injury, for which an injunction will be granted.</p> <p>Id.—Recalling Execution—Remedy by Motion.—An execution levied by a constable upon a homestead, but which could have been levied upon other property of the defendant if he had any, cannot he recalled upon motion of the defendant, and an injunction will not be refused to restrain the sale of the homestead, upon the ground that a remedy by motion exists.</p>