79 P. 855 | Cal. | 1905
In the administration of the estate of Catherine Geary, deceased, her surviving husband, Daniel Geary, petitioned the court to set off to him as a homestead certain lands described in the petition, under sections 1474, 1475 et sep. of the Code of Civil Procedure. The court made the order setting off the homestead as prayed for. The contestant made a motion for a new trial, and for the purposes of such motion presented and had settled a statement. The motion for a new trial was denied; and contestant appeals from the order setting off the homestead, and also from the order denying the motion for a new trial. On the appeal from the first order there is no bill of exceptions.
Respondent contends that the motion for a new trial was entirely unwarranted, and the appeal therefrom cannot be considered (citing Estate of Franklin,
Appellant's first contention is, that the declaration of homestead on which respondent relies is fatally defective for *108
want of a sufficient description of the homestead premises; but, in our opinion, this contention is not maintainable. The premises consist of a tract of one hundred and sixty acres, which at the time of the declaration of homestead was upon unsurveyed United States public lands in an unsettled region of country. Petitioner went upon the land with his family, consisting of his wife and her daughter, and at that time there was on the land a small adobe house which he occupied. A couple of months afterward he built a frame house, into which he moved with his family. He plowed some of the land, built a brush fence around ten or fifteen acres, and put in a crop. A couple of years afterwards he built a larger frame house, into which he moved with his family, built a board fence where the brush fence had been, built a stone fence around a large corral, fenced in an additional forty acres with a board fence, and used the land for farming and cattle-raising. He located and claimed one hundred and sixty acres, and marked it by a pile of stones at each corner. His place was known as "Vicetus," and afterwards as "Geary's Ranch." In his declaration of homestead the land is first described as a lot of one hundred and sixty acres, "on which I now reside with my family," in San Diego County, California, and then follows an attempted description by legal subdivisions, which, after the land had been surveyed by the United States government, was found to be incorrect. But the description continues as follows: "Said homestead known by the name of `Geary's Ranch,' and being the piece of or parcel of land occupied by me and my family nearly three years from the date hereof, together with all the improvements thereon, and it is my intention to use and claim the said lot of land and premises, together with the dwelling-house thereon and its appurtenances, as a homestead, and I do hereby select and claim the same as a homestead," etc. This description by name designated with sufficient certainty the premises intended to be covered by the declaration of homestead; and the other erroneous descriptions by legal subdivisions may be disregarded. It was no doubt unwise to attempt to describe the land by imaginary legal subdivisions which then had no existence, and the lines of which when afterwards established could only be guessed at. It was an isolated place on which petitioner lived with his family and *109
had marked by monuments, upon which he had erected buildings and fences, and thus distinguished it from the wild country around it; and as this place was known as "Geary's Ranch," the description by that name was, under the circumstances, sufficient. Petitioner afterwards obtained a United States patent for the land after it had been surveyed, which described it by correct legal subdivisions as they then had been established. It was averred in the petition that the land thus patented was the same land upon which he had placed his declaration of homestead, and the court so found upon sufficient evidence to sustain the finding. We think, therefore, that the point that the declaration of homestead is void for want of sufficient description of the homestead premises is not tenable. (See Stanley v. Green,
The other main point made by appellant is, that before the death of petitioner's wife he conveyed to her the said homestead premises, and thus lost his homestead right therein — or, at least, only retained the right to have the homestead set apart to him for a limited period. But petitioner did not convey the premises to his wife; and therefore we need not consider the vexed question as to what extent, if any, the conveyance by a husband to his wife of homestead premises affects his homestead right therein. In November, 1887, the petitioner executed a deed to one L.A. Blochman, purporting to convey the said homestead premises in fee to said Blochman; but petitioner's wife did not join in this deed. About two years afterward Blochman executed a deed purporting to convey said premises in fee to petitioner's wife, Catherine Geary, who was then living. It was averred in appellant's answer that the said deed from petitioner to Blochman was made "in trust for and with the understanding and agreement that said L.A. Blochman should thereafter deed and convey the said premises to the said Catherine Geary as her separate property"; and it is contended that the deed to Blochman and the deed from the latter to Catherine should be taken as substantially a direct conveyance from petitioner to his wife. But the court found that the deed to Blochman *110 was not in trust for Mrs. Geary, "nor was the same executed for the purpose or with any understanding or agreement that said L.A. Blochman should thereafter deed or reconvey the said premises to the said Catherine Geary"; and this finding is amply supported by the evidence, for it appears very clearly that it was made for an entirely different purpose. Therefore, the deed of the homestead premises to Blochman by the petitioner alone did not convey any title to the former, and, of course, his deed to Catherine conveyed nothing, even if petitioner consented to or directed it.
The foregoing conclusions as to the two main points above noticed are determinative of the other contentions of appellant, which are merely incidental to the main points, and we see nothing further in the case which calls for special notice.
The orders appealed from are affirmed.
Lorigan, J., and Henshaw, J., concurred.
