
    [No. 6,408.]
    SULLIVAN v. HENDRICKSON et al.
    Homestead.—A judgment obtained after the filing of a declaration of homestead cannot be enforced against the homestead, although an attachment may have been levied upon the premises before the filing of the declaration. Affirming Harris v. McCracken, 61 Cal. 81.
    Appeal from an order refusing to grant an injunction, in the Fifteenth District Court, City and County of San Francisco. Dwinelle, J.
    
      W. A. Plunket, for Appellant.
    The controlling question in this case is, whether premises invested with the character of a homestead before judgment, but after the levy of an attachment thereon, are subject to execution or forced sale where the judgment is not obtained in any of the cases mentioned in Civil Code, § 1241.
    By Civil Code, § 1240, the homestead is exempt from execution or forced sale except as otherwise provided in the same title. The exceptions are contained in Civil Code, § 1241, and the case of respondents does not come under any of them. By Civil Code, § 1265, it is expressly provided that, except in the cases above specified, the homestead “ in no case ” shall be liable for the debts of the owner.
    The judgment cannot be a lien upon the homestead. The statute provides that it shall become a lien only on property not exempt from execution. (Ackley v. Chamberlain, 16 Cal. 181-3; Bowman v. Norton, Id. 220; Civil Code, § 1241.) A judgment does not relate back to the date-of the attachment, where a declaration of homestead is filed after the attachment, but before the judgment. (Smythe’s Homesteads and Exemptions, p. 178, § 198; Hawthorne v. Smith, 3 Nev. 185; Civil Code, §§ 1240-1241, 1265; McCracken v. Harris, 54 Cal. 81.) In Mississippi it has been decided that premises liable to sale at the date of the judgment can be impressed with the rights of a homestead before levy or sale. (Trotter v. Dobbs et ux. 38 Miss. 198; Lesley v. Phipps, 49 Id. 790.) A fortiori, property can be impressed with the character of a homestead before judgment, as in this case. The Constitution seems to empower the Legislature to authorize a declaration of homestead to be made at any time before sale. (Const. [old] art. xi, § 15.)
    
      T. F. Bachelder, for Respondent.
   Department No. 2, by the Court (from the Bench):

In this case, the order of the Court below is reversed, and cause remanded, on the authority of the opinion of this Court, filed December 31st, 1879, in McCracken v. Harris, 54 Cal. 81.  