(dissenting)—I am unable to concur in the majority opinion, because, as I view it, that opinion relies upon a brief hiatus in the bare legal title to achieve an unrealistic, unnecessary and unjust result. The decision approves the procedure whereby the creditor, Washington Credit, Inc., for a $1,295.12 debt obtained the $80,000 home of the Houstons in which they had lived continuously since 1954, and upon which Mr. Houston, as head of the household, had properly filed a declaration of homestead.
The brief period in 1971 that the legal title was transferred to Queen City Savings and Loan Association is of no consequence, because the law in effect at that time did not require legal title or ownership to either successfully claim or maintain homestead status of property where a family resided. RCW 6.12.010 (amended by Laws of 1981, ch. 329, § 7, p. 1549). What was required was that they live on the property as their home and that a declaration of homestead be filed. Thus, possession was the key to their right to homestead.
Historically, possession is the single most important attribute of right to land. As stated in 2 F. Pollock & F. Maitland, History of English Law 29 (2d ed. 1911):
In the history of our law there is no idea more cardinal than that of seisin. Even in the law of the present day it plays a part which must be studied by every lawyer; but in the past it was so important that we may almost say that the whole system of our land law was law about seisin and its consequences.
Seisin is possession.
*47(Footnote omitted.) In the context of the common law, possession is good title of right against anyone who cannot show a better title. P. Fitzgerald, Salmond on Jurisprudence § 60 (12th ed. 1966). This is because "Possession of material things is essential to life; it is the most basic relationship between men and things." Fitzgerald, at § 51.
In Washington, this principle as it pertains to the homestead exemption was recognized in Downey v. Wilber, 117 Wash. 660, 661, 202 P. 256 (1921) wherein the court said:
Its [the homestead exemption] purpose is not to give or confirm title in the claimant, but is to prevent a forced sale of the home; in other words, to secure the claimant and his family in the possession of his home.
Also, as was said in Desmond v. Shotwell, 142 Wash. 187, 188, 252 P. 692 (1927):
[N]owhere in the statutes ... is there any requirement that the person asserting the right must own either a legal or an equitable interest in the property claimed.
Although the latter quotation is characterized as dicta in Security Sav. & Loan Ass'n v. Busch, 84 Wn.2d 52, 523 P.2d 1188 (1974), and rightly so, these expressions exemplify the essence of family rights in land. Before 1895 in Washington, occupancy established the homestead. So it is in most states to this day. See generally G. Pindar, American Real Estate Law § 17-2 n.2 (1976). In 1981 the Washington State Legislature conformed our law to this practice. Laws of 1981, ch. 329, §§ 7, 9 and 10, p. 1549.
Busch is distinguishable. There, the homestead was held to have been extinguished because "subsequent to making the declaration of homestead [the family] voluntarily parted with all interest in the . . . property by means of a quitclaim deed." Busch, at 56.
Queen City Savings made no attempt to gain possession of the property by writ of assistance in aid of the decree of foreclosure, if in fact the decree provided for it, or by independent action as discussed in the Busch case. There probably was a right to possession, but there is no showing that the right was exercised. In the meantime, the property was *48the Houstons' home, protected against all general creditors, including Washington Credit.
The result reached by the majority is an unconscionable windfall for Washington Credit. No contention is made that it or its successors were in any way misinformed or misled by the mortgage transactions and litigation between Queen City Savings and the Houstons. By no stretch of the imagination were they innocent bona fide purchasers for value. Quite the contrary, Washington Credit transferred the sheriffs certificate for no stated consideration to Master Mortgages, Inc. which conveyed the property to William Miebach by special warranty deed which excludes all warranties, statutory and otherwise, except that Master Mortgages, Inc. is the grantor.3
I would affirm.
Reconsideration denied March 28, 1983.
Review granted by Supreme Court July 15, 1983.
The "warranty" part of the deed reads: "The Grantor for it and for its successors in interest does by these presents expressly limit the covenants of the deed to those herein expressed, and excludes all covenants arising or to arise by statutory or other implication, and does hereby covenant that against all persons whomsoever lawfully claiming or to claim by, through or under said Grantor and not otherwise, it will forever warrant and defend the said described real estate."