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District Court of Appeal, Second District, Division 2, California.


Civ. 12374

Decided: December 08, 1939

Schauer, Ryon & McMahon, of Santa Barbara, and W.T. Shipsey, of San Luis Obispo, for appellant. Alex. Webster, of Paso Robles, for respondents.

Suing upon a book account for merchandise, plaintiff caused a “farm and home” of defendants to be attached. After the hearing of a motion to discharge the writ upon the ground that as a homestead it was exempt from attachment, the trial court released the levy. From the order made, plaintiff appeals.

The sole question presented is whether realty upon which a homestead declaration has been filed can be validly attached. Since exemptions are creatures of statute (Stanton v. French, 91 Cal. 274, 37 P. 657, 25 Am.St.Rep. 174), and since the appellate decisions furnish no precedent, we must find answer in the constitutional and codal provisions.

Courts are powerless to add to or to subtract from the list of exemptions. In re Estate of Brown, 123 Cal. 399, 55 P. 1055, 69 Am.St.Rep. 74. “The Legislature will protect, by law, from forced sale a certain portion of the homestead.” Const., art. XVII, sec. 1. The homestead is exempt from execution or forced sale except (1) where the declaration has not been filed prior to issuance of the execution (Civ.Code, §§ 1240, 1241), and (2) where, after receiving the report of appraisers, the court orders a sale in those instances in which so much of the land and the residence cannot be set off to the claimant “as will amount in value to the homestead exemption”. Civ.Code, §§ 1253, 1254. But, because only that property may be attached under section 540 of the Code of Civil Procedure which is not exempt from execution, it is contended by defendants that their homestead is not subject to attachment because their declaration was of record prior to its attachment.

There are two answers to these contentions: (1) Since the homestead is not exempt if the appraisal and partition proceedings provided for under sections 1245–1254 are followed, it may be said to consist of the debtor's legal homestead and the creditor's equity. If it can be partitioned in such manner as to have the house and an area of ground worth $5,000 set aside as a “homestead”, the balance is subject to levy and sale. If such partition cannot be made, the entire property must be sold, if a bid in excess of $5,000 be received (Civ.Code, § 1255), the $5,000 paid to the claimant and “the balance applied to the satisfaction of the execution.” Civ.Code, § 1256. The parcel detached from the homestead or the excess of the sale value over $5,000 may be termed the creditor's equity. Since it is subject to sale under execution, it is also subject to attachment as in the case of any other nonexempt property.

(2) Moreover, no provision is made for appraisal proceedings and order in the case of attachment. The statute for that remedy merely requires a sheriff “to attach and safely keep all the property of * defendant * not exempt from execution.” Code Civ.Proc. § 540. This is not equivalent to a levy of an execution. It is harmless as to the debtor, for if the homestead can or cannot be sold for a sum in excess of $5,000, no possible injury can befall the claimant. On the one hand, he gets his $5,000 or a detached parcel of that value; on the other, he remains secure in his undivided ownership.

For the reasons above indicated the order discharging the attachment is reversed.

MOORE, Presiding Justice.

We concur: WOOD, J.; McCOMB, J.

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Docket No: Civ. 12374

Decided: December 08, 1939

Court: District Court of Appeal, Second District, Division 2, California.

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