Opinion of the Court- REAVIS, J. [20 Wash. thorne v. Smith, 3 Nev. 182 (93 Am. Dec. 397); Freeman, Executions (2d ed.), §§ 211, 212. The opinion of the court was delivered by REAVIS, J.-In November, 1891, appellant obtained judgment in the superior court of Spokane county against respondents, who were then, and are now, husband and wife. At the time, respondents resided upon certain real property in the city of Spokane, which is now of the value of about one thousand dollars, and which was their homestead. After rendition of the judgment against them, respondents conveyed their homestead in moieties by separate deeds to Mrs. Brier and Mrs. Stratton. In 1893 appellant commenced two suits in the superior court, one against the respondents and Mrs. Brier and the other against the respondents and Mrs. Stratton. The complaint in each suit stated the rendition of the judgment against respondents, and that respondents were husband and wife; that transcript of the judgment was filed with the auditor of Spokane county and duly recorded before the conveyances to Mrs. Brier and Mrs. Stratton were executed; and alleged that the judgment was a lien upon the real estate so conveyed, and that the deeds of conveyance executed by respondents were wholly without consideration and were made for the purpose of evading the judgment, and for the purpose of defrauding the appellant and other creditors of respondents; and that the land at the time of the conveyances was subject to the lien of appellant's judgment, and that respondents had no other property out of which plaintiff could make the judgment except property described as likewise conveyed and included in the two deeds mentioned; that execution had been issued upon the judgment, but there was no property upon which it could be levied except the realty which is the Sept. 1898.] Opinion of the Court - REAVIS, J. subject of controversy in this action; and the prayer of the complaint was that the judgment be declared a lien upon the real estate mentioned, and that the deeds of conveyance to Mrs. Brier and Mrs. Stratton be set aside as against the judgment of appellant, and for a decree against defendants authorizing and directing the sheriff of Spokane county to sell the real estate upon the execution issued on the judgment for the satisfaction thereof. Respondents, together with Mrs. Brier and husband and Mrs. Stratton and husband, were made defendants, and they all appeared and united in an answer to the complaint. The answer admitted the execution and delivery of the deeds and denied the other material allegations of the complaint. Upon the issues thus made the cause went to trial and evidence was heard, and the court found the rendition of the judgment against respondents, and that said judgment had not been paid and the amount due and owing thereon; that the transcript of the judgment was duly filed and recorded as alleged in the complaint and the conveyance by the deeds as stated in the complaint; and that the judgment was a lien upon the real estate and appellant was entitled to make the same thereon by execution; and on the 13th day of October, 1893, a decree was entered that appellant could proceed to sell the real estate on execution upon its judgment, and that the purchaser at such execution sale take all the right and interest owned and possessed by the respondents at the time of the rendition of the judgment, on the 23d of November, 1891. No exception or appeal was taken to or from the decree. In November, 1893, respondent George F. Schorr duly executed and recorded a declaration of homestead upon the said real estate. On the 17th of March, 1897, the original judgment was duly revived and the lien of judgment continued thereon by decree entered of Opinion of the Court - REAVis, J. [20 Wash. that date in the superior court, and thereafter execution was issued and the premises sold under said execution, and upon motion to confirm such sale the present controversy arose. Upon argument of the cause before this court all the objections to the jurisdiction of the superior court to consider this controversy in the form in which it was presented were waived by counsel, for the respective parties, and the cause is here considered as upon an issue properly made to determine the homestead right in the premises in litigation at this time. 1. The superior court found, and the conceded facts sustain the conclusion, that the realty in controversy was the homestead of respondents when the judgment in favor of appellant was rendered against them in 1891; and a vital question is, Does a general personal judgment become a lien upon a homestead in this state? It is maintained by counsel for respondents that the sale of the property was not made in the manner and form provided by law for the sale of homesteads (2 Hill's Code, § 484); that, on the contrary, the sheriff's return shows that all proceedings prior to the sale were under the statutes for sale of lands other than homesteads (2 Hill's Code, § 496 et seq., Bal. Code, § 5269); and counsel contends that the lien of the judgment attaches to all the real estate of the judgment debtor, including the homestead; and in support of such contention cites the case of McMillan v. Mau, 1 Wash. 26 (23 Pac. 441). In that case a widow, as administratrix of the estate of her deceased husband, petitioned the probate court to set aside a homestead, but creditors who had obtained a judgment against the deceased and filed a transcript thereof in the auditor's office claimed that the deceased moved upon the land after the lien attached, and such creditors filed objections to the allowance of such homestead, setting up their judgment Sept. 1898.] Opinion of the Court - REAVIS, J. lien and that the lien took precedence of the homestead claim of the widow. The probate court sustained the priority of the lien over the homestead claim, which view was also sustained by the territorial district court, to which an appeal had been taken, but upon appeal to this court it was said: "We think that under the laws relating to the selection. of homesteads, the action of the probate and district courts was erroneous; that the obtaining of a general judgment lien does not cut off the subsequent selection of a homestead at any time before sale." It will thus be observed, from a consideration of the case cited, that the precise question involved in the controversy now here was not ruled upon in that case. It is also contended by counsel that the homestead exemption is a personal privilege, to be exercised by the claimant or not, at his will and at any time before sale. As a general rule, the lien of a judgment only attaches to property which there is a present power to sell, and the question must be solved by the statutes relating to homestead exemptions. The state constitution imposes its mandate upon the legislature to protect the homestead from forced sale. Art. 19, § 1. The statute in force at the time of the rendition of appellant's original judgment against respondents, in 1891, was 2 Hill's Code, § 481, in which a homestead not exceeding in value one thousand dollars was exempted from execution or attachment. By § 482, the homestead passed to the widow surviving the husband, or to the minor children, and the creditor could not have an execution as of course against such homestead. Id. § 484. When the homestead was sold, a subsequent homestead acquired with the proceeds thereof was exempt, and § 485, 2 Hill's Code (Bal. Code, § 5247), provided: "In case of the sale of said homestead, any subsequent Opinion of the Court- REAVIS, J. [20 Wash. homestead acquired by the proceeds thereof shall also be exempt from attachment and execution; nor shall any judgment or other claim against the owner of such homestead be a lien against the same in the hands of a bona fide purchaser for a valuable consideration." A sale of a homestead under execution is void, and the homestead may be conveyed unaffected by such execution sale. Asher v. Sekofsky, 10 Wash. 381 (38 Pac. 1133). The proceeds of exempt property are also exempt from execution. Puget Sound, etc., Packing Co. v. Jeffs, 11 Wash. 470 (39 Pac. 962, 48 Am. St. Rep. 885.) The homestead may be mortgaged without affecting the right to claim it thereafter as a homestead. Wiss v. Stewart, 16 Wash. 376 (47 Pac. 736). Mr. Freeman observes (1 Freeman, Executions, 2d ed., § 249 d): "The lien of a judgment and of an execution is almost universally regarded as arising from the right to sell property thereunder. And hence, where the right of sale cannot be asserted, the existence of the lien must be denied. It would follow, as a logical result, from the application of this general principle, that a judgment rendered after the creation and before the abandonment of a homestead cannot be a lien thereon; If the property was a homestead, and as such exempt from execution, the exemption right is not lost by the transfer of the property to a third person. It cannot be sold in his hands under a judgment against his vendor." Provision is made by our statutes for reaching the excess in value of real estate claimed as a homestead over the amount exempted, but it is not the ordinary enforcement of the lien or a sale under execution. It is a special mode of sale after an appraisement. We think it is apparent, from an examination of the legislation creating and protecting the homestead in this state, and the construction placed upon such statutes by this court, that a |