Skinner v. Hunter

164 P. 244, 95 Wash. 607, 1917 Wash. LEXIS 861

• Court: Washington Supreme Court
• Decided: April 12, 1917
• Docket: No. 13854
• Status: Published

Opinion

Chadwick, J.—

Respondent began an action to foreclose a mortgage upon certain property in Spokane. A lis pendens was filed at the time the action was commenced. The property was occupied by appellants Bedford as tenants from month to month. They were not made parties to the foreclosure proceedings. Before judgment was entered, the Bed-fords, whom I shall refer to as appellants, purchased the property of the mortgagors and, on the same day, filed a declaration of homestead. After decree and sale, appellants refused to give possession, and respondent applied for and was granted a writ of assistance. Counsel contends that a writ of assistance is not a proper remedy, but as the record is not sufficient to raise that issue, we will consider his main reliance, that is, that his clients are entitled to remain in possession of the mortgaged premises under their claim of homestead.

The filing of a lis pendens bars a stranger to the title from asserting a homestead in the property. Rem. Code, § 243; Jones, Mortgages (7th ed.), § 1664. See, also, Payson v. Jacobs, 38 Wash. 203, 80 Pac. 429; Portland & Seattle R. Co. v. Ladd, 47 Wash. 88, 91 Pac. 573.

Under our statute, the right to claim a homestead in property can hardly be said to be a matter of traffic. It is a right reserved to a “judgment debtor” to “retain” possession of the mortgaged premises during the period of redemption. Rem. Code, § 602.

Since appellants’ grantors had neither possession nor right of homestead at the time the lis pendens was filed, it follows that the judgment must be affirmed.

Ellis, C. J., Main, and Webster, JJ., concur.