85 Cal. 71 | Cal. | 1890
This is an appeal from an order setting apart a homestead to an insolvent debtor.
The facts are these: On the twenty-second day of October, 1887, Louis Demartin filed his petition in insolvency, and on the same day he was adjudged to he an insolvent debtor, and - a time was appointed for his creditors to meet and prove their debts and choose an assignee of his estate. Annexed to the petition were the requisite schedules and inventory, in which a portion of the real property was described as petitioner’s homestead, and the value thereof was placed at five thousand
On the 7th of November the attorney for two of the creditors of the insolvent filed his affidavit (giving the reasons why it was made by him), setting forth that Demartin filed his declaration of homestead on the twenty-ninth day of September, 1887; that he filed his petition in insolvency on the twenty-second day of October; that he petitioned the court to have said homestead set apart to him on the fifth day of November; and that, as affiant was informed and believed, the value of the premises selected as a homestead was from eight thousand to ten thousand dollars; and praying the court, before setting the same apart, to appoint three persons to appraise the value thereof and return their appraisement to the court.
On the 10th of November, the court set the matter for hearing on the next day, at ten o’clock, a. m. At the time set for the hearing, the attorney for the objecting creditors did not appear, and thereupon, on motion of counsel for the petitioner, no evidence being offered by him, and there being nothing before the court except the papers before mentioned, an order was made and entered setting apart for the use and benefit of the petitioner as a homestead all of the premises described in his petition.
1. It is claimed for appellants that the order was erroneous, and should be reversed, because no evidence was offered on behalf of respondent showing that he
The Civil Code provides that homesteads may be selected and claimed, of not exceeding five thousand dollars in value, by any head of a family (sec. 1260), and that from and after the time the declaration is filed for record, the premises therein described constitute a homestead. (Sec. 1265.) A homestead may be selected of greater value than five thousand dollars, and the excess in value does not invalidate the selection. (Ham v. Santa Rosa Bank, 62 Cal. 125; Lubbock v. McMann, 82 Cal. 230.) The excess in value, if there be any, is subject to the claims of creditors, but it can be taken only in the manner provided by statute for its admeasurement and application. (Civ. Code, secs. 1245-1256; Waggle v. Worthy, 74 Cal. 268.) When an execution creditor claims that the value of the homestead exceeds the sum of five thousand dollars, and seeks to subject the excess to the payment of his debt, the burden is upon him to prove, among other things, that there is an excess, before the court can take any action. (Civ. Code, sec. 1249; Stone v. McCann, 79 Cal. 460.)
The Insolvent Act (section 60) makes it the duty of the court having jurisdiction of the insolvency proceedings to exempt and set apart, for the use and benefit of the insolvent, a homestead in the manner provided in sec
2. It appears, from the bill of exceptions, that no findings were made by the court, and that they were not waived by the appellants. And it is claimed that issues of fact were raised, upon which findings were necessary, and that for the want of them the order should be reversed. But waiving the question as to whether findings are ever necessary in support of an order like that involved here, the rule is, as said in Monterey County v. Cushing, 83 Cal. 510: “If no direct evidence be introduced upon any issue, the finding should be against the party who had the burden of proof.” And in People v. Center, 66 Cal. 564, it is said: “ When the court fails to find on a material issue, the judgment will not be reversed, if the finding omitted must have been adverse to the appellant.” (Citing Hutchings v. Castle, 48 Cal. 152, and McCourtney v. Fortune, 57 Cal. 617.) And this rule has been approved and followed in subsequent cases. (See Murphy v. Bennett, 68 Cal. 528, and Senter v. Senter, 70 Cal. 620.)
It follows that the order appealed from should be affirmed.
Vanclief, C., and Foote, C., concurred.
— For the reasons given in the foregoing opinion, the order appealed from is affirmed.