27 Cal. 418 | Cal. | 1865
This is an action to foreclose a mortgage executed by Julio Verdugo on the second day of January, 1861, upon the land described in the complaint. A portion of the lands were known as the “ Eancho of San Bafael.” The principal question in the case is, as to whether the defendants, Verdugo and wife, are entitled to have a homestead reserved from .the operation of the mortgage and decree. The case was tried by the Court without a jury, and the fourth and fifth findings are as follows:
“ 4. The Court also finds that, at the time of the execution*421 of said mortgage, the southern portion of the Eancho of San Eafael was the residence and homestead of said Julio Verdugo and wife and family; that said Eancho of San Eafael was acquired by Julio Verdugo and his sister Catarina by inheritance from their father, and that there was a parol division of said Eancho of San Eafael between said Julio and Catarina before the acquisition of California by the Government of the United States, followed by immediate possession of their respective portions, and continued for a long series of years anterior to the execution of the mortgage, and for more than ten years previous to the change of Governments. That by said division Catarina received and possessed the upper or northern half of the rancho, and Julio the southern or lower half. That said Catarina resided on and held the northern half containing the old family residence. That Julio moved to, and built on and resided, with his wife and family, on the southern half, where he resided with his family at the time of the execution of the mortgage, and which was the homestead of himself and wife at the time, under the Act of the Legislature of 1851; and that the same was duly recorded as their homestead on the 13th day of April, 1861, in compliance with the Act of April 28, 1860.”
“5. That there was a division of the whole mortgaged property between Julio and Catarina in 1861; but'that, as to that portion of the property, to wit, the Eancho of San Eafael, acquired by inheritance, it was merely a confirmation of the ancient verbal division.”
Upon these findings the Court decreed, that a homestead of the value of five thousand' dollars should be selected and set apart. Plaintiff moved for a new trial, which was denied, and the appeal is from the order denying the motion.
After, setting out the note and mortgage, the plaintiff, in his complaint, avers, “ that at the time of the execution, delivery and record, as aforesaid, of the said mortgage, the said mortgagor, Julio Verdugo, was the ownér, in the tract described in said mortgage, as tenant in common with Catarina Verdugo —the said Julio and said Catarina each owning one undivided
The testimony of the defendants as to the parol partition is of the most unreliable character. On the other hand, all the documentary evidence in the record shows that the parties themselves did not suppose they held specific -portions of the rancho in question in severalty. The defendant, Julio, describes the entire rancho in his mortgage—not the southern half merely. So, also, the petition in the record to the Land Commissioners for confirmation of the grant is presented in the names of Julio and Catarina jointly, and the title is confirmed to them according to their petition as coparceners. So also in the deed of partition executed between them since the execution of the mortgage in question, there is no recital of, or reference to any prior partition, but on the contrary the deed recites: “ That whereas, the said Catarina Verdugo, and Julio Verdugo do have and hold, and are seized in common and as tenants in common in equal parts of those certain tracts or parcels of land,” etc., describing two tracts, one being the “ Rancho of San Rafael." * * * * “And, whereas, both of said tracts of land adjoin and are connected one with the other; now, therefore, it is covenanted, granted, concluded and agreed by and between the said Catarina Verdugo and Julio Verdugo * * * # that a partition of said lands seized by them in common be made in the manner and form following,” etc. In view of these facts, and the facts that 'stand admitted by the pleadings, it is manifest that the evidence is insufficient to support the findings.
At the time the pleadings were filed, it is evident, that the defendants did not rely upon a parol partition, for their answers are not framed upon any such theory.
That .a valid parol partition might have been made under the law which prevailed in California before, the adoption of
Respondents insist, that the decisions to the effect that a homestead cannot he carved.out of land held in joint tenancy, or by tenancy in common, are erroneous and ought to be overruled. It is now too late to re-investigate the reasons upon which those decisions are based. The first of the series, Wolf v. Fleischacker, 5 Cal. 244, was made nine years ago. The decision was affirmed in Reynolds v. Rixley, 6 Cal. 167; Giblin v. Jordan, 6 Cal. 417; and Kelleisberger v. Kopp, 6 Cal. 565 ; and since that time the construction of the statute upon the point involved has been regarded as settled. The parties in this case may have relied upon those decisions in dispensing with the signature of the wife to the mortgage.
The rights of Ramirez and Sepulveda, held adversely to the title mortgaged, should have been saved in the decree. [San Francisco v. Lawton, 18 Cal. 478.)
The order denying a new trial is reversed, and the cause remanded for further proceedings.