97 P. 421 | Cal. | 1908
Plaintiff brought this action to quiet title to a lot of land in the city of Vallejo. Upon January 7, 1869, *262 plaintiff and his wife were living upon the property in question under a contract of purchase, and subsequently the purchase was completed. Upon that date the wife executed a declaration of homestead upon the property, which was recorded upon the eleventh day of the same month. Differences arose between plaintiff and his wife, and in 1891 he executed a deed to her of all his interest in the property, she paying him a money consideration therefor. He left California and took up his residence in the city of New York. Subsequently his wife instituted an action for divorce, and service of summons upon the husband was obtained by publication. She secured her divorce upon September 20, 1897. The affidavit of service by publication declared that the defendant (this plaintiff) resided at No. 695 First Avenue, New York City, state of New York. The return of service showed that a copy of the summons, attached to a true copy of the complaint, had been deposited in the post-office, directed to "James Donnelly, the said defendant, at No. 695 5th Avenue, New York City, New York." In the decree awarding Mrs. Donnelly her divorce, the property here in controversy was set apart to her. On the fifth day of October, 1897, Mrs. Donnelly executed to this defendant a deed to the property, receiving therefor its full monetary value. Mrs. Tregaskis has remained in possession of the property ever since, claiming it against the world, her possession being undisputed until this action was commenced, November 22, 1905. Appellant bases his claim to the property upon his construction of the provisions of section 1474 of the Code of Civil Procedure, and section 4 of the Homestead Act, as amended in 1862, [Stats. 1862, p. 519], the provisions of which laws he contends give him, as the survivor of the marital community, the absolute title to the homestead. In this connection he argues that the decree of divorce was void for insufficiency of proof of service appearing upon the face of the judgment-roll as above noted, that the homestead character impressed upon the land was not destroyed and could not be destroyed excepting by joint act of the parties, and that it remained in full force and effect, notwithstanding his deed to his wife and her deed to this defendant.
All of this presupposes the recordation of a valid declaration of homestead. If, however, the declaration of homestead *263
was invalid, so that the property did not become a homestead, then, indisputably, appellant's deed to his wife divested him of all title to the property, regardless of the court's award to her of the property in the divorce proceeding. The declaration of homestead made by the wife set forth that she resided with her family "on the lot of land and premises situate, lying and being in the city of Vallejo, county of Solano, state of California, bounded and described as follows, to wit: being lot No. 14 in block No. 266, according to the map of said Vallejo made by C.W. Rowe, surveyor." A description of the premises is required by the code as an essential to a valid declaration of homestead. (Civ. Code, sec. 1263; Jones v. Gunn,
But, upon another consideration, equally beyond question, the judgment of the trial court was sound. The defendant pleaded title by adverse possession and the statute of limitations. These pleas were abundantly supported by evidence. As against them, appellant argues that the decree of divorce being void, the wife's possession was his possession, and that the wife's deed to this defendant under which she entered, being based upon a void decree, would not serve to initiate an adverse possession under section
For which reasons the judgment appealed from is affirmed.
Lorigan, J., and Shaw, J., concurred.
Hearing in Bank denied.