Burbank v. Kirby

HUSTON, J. — Plaintiff having recovered a judgment in the district court against defendant Thomas Kirby, issued execution thereon, and levied upon, and sold thereunder, certain real estate of said defendant. Having received a sheriff’s deed of the real estate, plaintiff made demand of possession of the property of defendant, and, possession being refused by the defendant, plaintiff brought this action to recover possession. Judgment in the first action was taken by default after personal service, no appearance having been made in said action by defendant. To this action defendants appear, and set up as a defense that prior to the levy of the attachment and recovery of judgment by plaintiff against the defendant Thomas Kirby, the defendant, May Kirby, as the wife of the said Thomas Kirby, had filed a declaration of homestead upon the real estate in question, and that by reason thereof said real estate was not subject to levy and sale. The real estate in question was community property It is claimed by plaintiff that the declaration of homestead filed by said defendant May Kirby, as wife of defendant, Thomas Kirby, not having been acknowledged, as required by the statute of Idaho, the same was void and inoperative, and did not constitute a homestead under the statutes of this state. Section 3070 of the Bevised Statutes of Idaho is as follows: "In order to select a homestead, the husband or other head of the family, or in ease the husband has not made such selection, the wife must execute and acknowledge in the same manner as a conveyance of real property is acknowledged, a declaration of homestead and file the same for record.” Section 3073 provides that: "From and after the time the declaration is filed for record, the premises therein described, constitute a homestead.” It is palpable that the declaration of homestead relied upon by the defendants in this case was not, as shown by the certificate of the [213] notary, acknowledged, as required by statute. Section 3971 of the Revised Statutes of Idaho is as follows: “When the acknowledgment or proof of the execution of an instrument is properly made, but defectively certified, any party interested may have an action in the district court to obtain a judgment correcting the certificate.” The statutes we have quoted were copied from those of California, and before their adoption by Idaho had been repeatedly passed upon and construed by the supreme court of the former state. In Kennedy v. Gloster, 98 Cal. 143, 33 Pac. 941, following Beck v. Soward, 76 Cal. 527, 18 Pac. 650, the court says: “The certificate must be attached to the declaration, and the paper may then be filed for record, and constitute a homestead; but, if the certificate is not made in substantial conformity to the requirements of. the statutes, the paper is not entitled to record, and if filed and recorded, it will not constitute a homestead.” Accepting the construction of the statute as given by the supreme court of California, we must conclude that at the time the attachment by plaintiff was levied, at the time he recovered judgment, at the time of the sale under execution, and the making and delivering of a deed by the sheriff, no homestead existed on the lands in question. But it is claimed by counsel for defendants that, as the acknowledgment was properly taken, and that the defect in the certificate arose from an oversight on the part of the notary, the defendants are entitled to have said certificate reformed in this action, and that such reformation shall relate back to the time of the filing for record of the declaration of homestead. We cannot agree with this contention. We have examined all of the authorities accessible cited by counsel in support of his position, and find that without exception they apply to cases of conveyances. A homestead is not a conveyance. It possesses none of the essential requisites of a conveyance. There is neither grantor, nor grantee, nor consideration in a declaration of homestead. There is no transfer of, or change in, the title. It is the act of the owner of the property, whereby such owner secures a right or privilege given him by the statute, and which is in derogation of the common law and common right, and which can only be secured by a substantial compliance with the provisions of the [214] statute, conditions precedent to the investiture of the property with the exceptional character contemplated. If the title to the property passes from the owner by due and proper proceedings in the course of law, he cannot, after such title has vested in another, defeat it by establishing a homestead nunc pro tunc. The declaration of homestead was prepared, executed, and acknowledged on the 10th of August, 1893. On the third day of November, 1893, it was filed for record. On February 15, 1894, plaintiff commenced his action, and issued attachment, and levied the same upon the property in question; and on March 31, 1894, judgment was entered against the defendant Thomas Kirby and in favor of plaintiff. On August 26, 1894, execution was issued on the judgment, and on November 12th sale was had, and certificate of sale and sheriff’s deed were thereafter executed and delivered to plaintiff. Defendants had six months and over after the execution of the declaration of homestead in which to have the defective certificate of acknowledgment corrected as provided in section 2971 of the Revised Statutes, or to file a new and proper declaration, and did not avail themselves of either remedy. Judgment of district court is reversed, with costs to appellant. (December 15, 1898.) Sullivan, C. J., and Quarles, J., concur.