This appeal is taken from an order refusing to dissolve an injunction. The defendants had caused an execution to be levied upon the homestead of the plaintiff, issued under a judgment obtained against him in a justice’s court by one H. C. Howard. It is charged in the complaint that the defendant Insley, as constable, has levied upon the property, and is about to sell it under execution, and that the defendant Montgomery applied to the justice of the peace and had the execution issued'without authority; that Insley has been duly notified that the property he has levied upon and advertised for sale is the homestead of the plaintiff, and exempt from execution; but that nevertheless the defendants are about to, and unless restrained by the superior court “ will, sell plaintiff’s said homestead property at forced sale to satisfy said judgment.” It is further stated that the sale contemplated would cast a cloud upon the plaintiff’s title to the property, and “ would irreparably injure and disturb plaintiff in the quiet enjoyment of said premises, and that plaintiff has no speedy and adequate remedy at law.”
The court below granted a temporary injunction as prayed for. A motion was then made to dissolve said injunction; upon that motion, which, as we have seen, was denied, an affidavit was read that the plaintiff’s *138mother died on the 18th of July, 1889. It was urged by the appellants here that since the declaration of homestead showed that the plaintiff had declared a homestead upon the property as the head of a family, because his mother was then residing with hitn on the property, under his care and maintenance, he was such “ head of a family,” in contemplation of law, only during the lifetime of his mother, who thus resided with him, and was maintained and cared for by him, and that, at her death, the right to the exemption of the homestead from forced sale ceased, and that it became liable as any other property of the plaintiff.
Conceding that, taking the complaint and declaration of homestead together, it appears that the only claim to be the head of a family which the plaintiff ever had was as a son with whom his mother resided on the property, and under his care and maintenance, under section 1261, subdivision 3, of the Civil Code, it appears to us that, under the statute governing the present matter, and hereafter cited, the homestead levied upon was exempt from the sale about to be enforced against it.
The decisions in Revalk v. Kraemer, 8 Cal. 73, 68 Am. Dec. 304, and Santa Cruz Bank v. Cooper, 56 Cal. 340, cited by the appellant in support of his contention, are not in point. At the time they were made, section 1265 of the Civil Code, as amended in 1880, was not the law. That section, at the time the declaration of homestead under consideration was made, read and now reads: “From and after the time the declaration is filed for record, the premises therein described constitute a homestead. If the selection was made by a married person from the community property, the land, on the death of either of the spouses, vests in the survivor, subject to no other liability than such as exists or has been created under the provisions of this title; in other cases, upon the death of the person whose property was selected as a homestead, it shall go to his heirs or devi*139sees, subject to the power of the superior court to assign the same for a limited period to the family of the decedent; but in no case shall it be held liable for the debts of the owner except as provided in this title.”
There is no question raised here that the property was not a homestead, or that it was liable mr any debt of the owner at the time it was declared, or that he was not the head of a family, and entitled to it as a homestead exempt from forced sale for any such debt as that on which the execution in this instance is founded; but the contention is that it became liable, after the death of his mother, to be sold under execution, as any other property of the plaintiff might be liable for any of 1ns debts. Under the plain language of the statute just quoted, it would appear that when the homestead was once declared, it remained as such, always exempt from forced sale as against any liability of the owner, except as provided in the provisions of the title of which it was a part. And as the debt here was not one for which, under that title, the property was liable, it must follow that the attempt to sell the property was forbidden by law, and a sale could vest no title in the purchaser.
But it is further urged that if such be the law the plaintiff was not entitled to an injunction, since no cloud would be cast upon his title by the sale, and hence no irreparable injury could result. The authorities do not sustain this view of the matter; for if the sale under execution had taken place, and a deed to the purchaser been made, and all other proceedings in the matter were' valid, and an action in ejectment had been brought by the appellants to recover from the plaintiff the possession of the property, the proceedings and muniments of title -which the plaintiffs in that action would produce would not show on the face thereof that such plaintiffs had no title to the property. It would be necessary, in order to defeat their action, that the defendant there, respondent here, should introduce extrinsic evidence to *140defeat the action; that is, he would be obliged to introduce the declaration of homestead, so as to show that an execution sale, valid on its face, and under a valid judgment against him, was not good to pass title to the property levied upon, which by the record was shown to be vested in'him, it is true, but not subject to this debt, because it was a homestead duly and legally declared, and not abandoned. The authorities seem to assert, where such necessity might exist of the introduction in an action of ejectment of such extrinsic evidence, that a sale as here proposed would cast a cloud upon the title to the property, and entitle the owner to have it enjoined, as was done it the present instance. (Pixley v. Huggins, 15 Cal. 127; Culver v. Rogers, 28 Cal. 527; Cohen v. Sharp, 44 Cal. 29; Porter v. Pico, 55 Cal. 176.)
The appellants claim further error in that they xirge that respondent could have applied to the justice of the peace who issued the execution and had the same recalled; hence that no necessity for an injunction existed, and none was proper. Inasmuch as. the record shows that the judgment was valid and binding against the defendant in execution and his property, save that which was exempt as a homestead, and the execution likewise, the court having jurisdiction to render the judgment and issue the execution, we perceive no reason why, at the request of the defendant therein, even if he had made such application, the justice would have been authorized to recall the execution which the constable had levied upon exempt property, but which could have been levied properly upon other property of the defendant if he had chanced to have any.
As to the point made, of the insufficiency of the complaint, as setting up facts showing threatened irreparable injury, we perceive no merit in it; as the pleading in question set out the facts showing that a cloud upon the title was threatened, and would be accomplished unless *141the injunction 'issued. We therefore advise that the order be affirmed.
Belcher, 0. 0., and Gibson, 0., concurred.
The Court. — For the reasons given in the foregoing opinion, the order is affirmed.