Opinion
Appeal from a judgment of the Superior Court of San Bernardino County.
COUNSEL:
A subsequent homesteader is neither a purchaser nor encumbrancer within the meaning of the code. (Civ. Code, sec. 1114.) The wife, in order to be bound by the judgment in the condemnation proceedings, should have been made a party by supplemental complaint. (Code Civ. Proc., sec. 464.)
H. C. Rolfe, for Appellants.
Curtis, Otis & Conner, for Respondent.
A subsequent homesteader is a purchaser or encumbrancer within the meaning of section 1114 of the Civil Code; and a homestead right acquired after the filing of a lis pendens in a proceeding to condemn land is subordinate to the lien created by the lis pendens. (Thompson on Homesteads and Exemptions, secs. 317, 318; Yost v. Devault, 3 Iowa 345; 66 Am. Dec. 92; Mills v. Spaulding , 50 Me. 57; McCauley's Estate , 50 Cal. 544.)
JUDGES: In Bank. Hayne, C. Foote, C., and Belcher, C. C., concurred.
OPINION
HAYNE, Judge
Ejectment. On November 9, 1885, the plaintiff William Roach was the owner of the land in controversy. On that day the defendant herein commenced proceedings against him to condemn a right of way over the land for a public purpose, and on November 23, 1885, duly filed a notice of lis pendens. On March 22, 1886, the plaintiff Rufina Roach, who was the wife of William Roach, and who resided on the premises with him, filed a declaration of homestead thereon. On April 1, 1886, judgment of condemnation was rendered in pursuance of a stipulation, which was as follows:
" It is hereby stipulated by the respective parties that plaintiff have judgment for the right of way over the land of defendant, as claimed in the complaint, and that defendant and his wife will execute a deed of said right of way in addition thereto to plaintiff upon plaintiff's paying to defendant $ 925." The plaintiff in said proceedings (defendant herein) paid said sum into court subject to the order of the plaintiff. It has not been withdrawn, but remains in the hands of the clerk for Roach, whose property it is.
The plaintiff Rufina Roach was not a party to the condemnation proceedings, and it is argued that she was not a purchaser or encumbrancer within the meaning of section 409 of the Code of Civil Procedure, which provides with reference to notices of lis pendens that "from the time of filing such record only shall a purchaser or encumbrancer of the property affected thereby be deemed to have constructive notice of the pendency of the action."
This provision applies to condemnation proceedings. (Code Civ. Proc., sec. 1256.) And we think the words "purchaser" must receive a liberal construction, and be held to include those who have acquired a homestead interest in the property. Any other rule would enable parties to commit frauds.
We therefore advise that the judgment be affirmed.
The Court. -- For the reasons given in the foregoing opinion, the judgment is affirmed.