1 Reported in 107 P.2d 593. The question for decision in this case is whether the mortgagors or the mortgagee is entitled to the possession of the property covered by the mortgage after foreclosure and sale.
W.L. White and Hazel C. White, his wife, were the owners of property covered by a mortgage, and they resided thereon, with their two minor children. February 15, 1940, Mr. White filed a declaration of homestead. Subsequently, on March 6, 1940, the Seattle Trust and Savings Bank instituted an action of foreclosure, in which Mr. and Mrs. White were made parties defendant. They were served with summons and a copy of the complaint, but made no appearance and were defaulted. The property was subsequently sold.
Thereafter, the plaintiff in the action to foreclose and purchaser at the sale petitioned for a writ of assistance, and Mr. and Mrs. White were cited to appear before the court and give their reasons, if any, why a writ of assistance should not issue to put the bank in possession of the property. After a hearing was had on the show cause order, the superior court granted *Page 358 the writ of assistance, and this order is now here for review by certiorari. The question, as above stated, is which of the parties is entitled to possession during the period of redemption.
Section 1 of Art. XIX of the constitution of this state makes it the duty of the legislature to protect by law from forced sale a certain portion "of the homestead and other property of all heads of families."
Rem. Rev. Stat., § 559 [P.C. § 7890], sets out what the declaration of homestead shall contain.
Section 528 [P.C. § 7860] provides that the homestead may be selected at any time before sale, with the provision that, unless it is selected before or within thirty days after a notice in writing of the entry of a judgment, it shall not be exempt from sale.
In § 602 [P.C. § 7917], there is a provision that, when a homestead has been selected in the manner provided by law,
". . . the judgment debtor shall have the right to retain possession thereof during the period of redemption without accounting for issues or value of occupation."
[1] The filing of the declaration of homestead in this state creates a vested interest in the property. Whitworth v. McKee,32 Wash. 83, 72 P. 1046; State ex rel. Columbia Valley LumberCo. v. Superior Court, 147 Wash. 574, 266 P. 731.
[2] Homestead and exemption laws are favored in the law, and are to be liberally construed. North Pacific Loan Trust Co. v.Bennett, 49 Wash. 34, 94 P. 664; Security Nat. Bank v.Mason, 117 Wash. 95, 200 P. 1097.
[3] In the case of State ex rel. Federal Land Bank v.Superior Court, 169 Wash. 286, 13 P.2d 890, it was held that, where the parties obligated to pay the mortgage were not made parties to the action of foreclosure *Page 359 and made no appearance, they would be entitled to possession during the period of redemption. It was pointed out in the opinion in that case that no view was expressed as to what the rule would be where the complaint tendered the issue as to the right of possession during the redemption period or the defendants appeared by answer and did not raise the question. There is no distinction between that case and the one now before us, and, unless it has been modified in some respects, it is controlling.
The bank relies upon two decisions of this court as supporting the order of the superior court directing that a writ of assistance issue. The first is State ex rel. O'Brien v. SuperiorCourt, 173 Wash. 679, 24 P.2d 117. In that case, the decree in the foreclosure action specially reserved jurisdiction to determine the matter of the right of possession in a subsequent proceeding. There is language in the opinion which, in effect, says that the defendants who are defaulted and did not appear are not entitled to claim the right of possession during the redemption period where the declaration of homestead was filed prior to the beginning of the foreclosure proceeding. On this matter, there was no issue in that case, and what was there said with reference to it was not necessary to the decision and may be said to be dictum, which, of course, is not controlling.
The other case is State ex rel. Crawford v. Paul, 185 Wash. 306,54 P.2d 411, where the dictum of the prior case was adhered to, though, in that case, it is distinguishable from the present case in two respects. There, the defendants appeared by counsel, but failed to plead or answer. In addition to this, the decree of foreclosure expressly provided that the plaintiff in the action was entitled to a writ of assistance. *Page 360
In view of the fact that what was said in the first of these two cases was dictum, and in the second, that dictum being adhered to when the case was distinguishable from the FederalLand Bank case, we are of the view that the rule of the FederalLand Bank case should be adhered to.
As above pointed out, the statute (Rem. Rev. Stat., § 528) gives the right to file a declaration of homestead any time before sale, as therein provided. That right would be denied if the decree of foreclosure should be held to be res judicata, as to the right to possession during the redemption period, in cases where the homestead had been claimed before the foreclosure proceeding was begun and no issue was tendered as to the right of possession.
[4] In the case now before us, the complaint did not tender the issue as to possession during the redemption period, though, in the prayer thereof, there was a request that the purchaser at the foreclosure sale be let into the possession of the premises immediately upon the confirmation of the sale. But that does not tender an issue. The prayer is no part of the complaint and cannot enlarge the scope thereof. Cascade Lumber Co. v. Hargis,167 Wash. 409, 9 P.2d 366; Acme Finance Co. v. Monohon,188 Wash. 392, 62 P.2d 1089.
Our conclusion is that Mr. and Mrs. White were entitled to the possession of the property upon which the mortgage had been foreclosed during the period of redemption.
The order of the superior court directing the issuance of the writ of assistance is, therefore, reversed, and the cause remanded with direction to dismiss the proceeding.
BLAKE, C.J., ROBINSON, and DRIVER, JJ., concur. *Page 361