Graham v. Oviatt

58 Cal. 428 | Cal. | 1881

Morrison, C. J.:

Ejectment to recover a tract of land lying in Alameda County. Plaintiffs claim under a homestead right, and defendants under a mortgage executed by plaintiff, Joseph Graham, and a foreclosure proceeding founded thereon.

It appears, from the findings, as well as from the bill of exceptions in the case, that Graham and his wife were in possession of the land in controversy from the year 1866 down to some time in the year 1875, but in what right they held the possession does not appear from the record.

On the 28th day of May, 1872, the husband (Joseph Graham executed a mortgage upon the property to secure a debt of five thousand dollars due to J. W. Strobridge, and on the 4th day of November, 1874, the mortgagee (Strobridge) commenced a suit in the Third District Court for the foreclosure of his mortgage. That suit was prosecuted to final judgment, and an order of sale having been issued thereon, the mortgaged premises were sold, and there having been no redemption, a Sheriff’s deed was duly executed to the purchaser at such sale. After Strobridge obtained the Sheriff’s deed, the plaintiff'Joseph Graham voluntarily surrendered the possession of the premises to him, and defendants have succeeded to the title acquired in the manner above stated.

On the 7th day of July, 1874, the plaintiff, Joseph Graham, filed a declaration of homestead on the property in controversy, and also included in his declaration another piece of property lying contiguous to it. In such declaration it is stated that “ the aforesaid described premises (those in controversy in this action) are subject to a mortgage held by James H. Strobridge for the sum of five thousand dollars, with three hundred dollars interest thereon.”

It is not apparent to us how the declaration of a homestead by Graham in 1874, could override a mortgage upon the land executed by him in 1872,; but it is obvious that it was not intended that such should be its effect. The entire property covered by the homestead declaration was of a value far exceeding five thousand dollars—the limit of a homestead claim. We find in the bill of exceptions this statement respecting its value: “ The proof shows that the whole of said premises, including the land and buildings at the time of filing said homestead declaration [were], and now are of the value of about sixteen thousand dollars.”

We repeat, therefore, that it is clear upon the face of the declaration of homestead that it was not intended thereby to assert a title hostile to that held under the mortgage, but one in subordination to it. The Court below took this view of the case, and, as we think, very properly.

Judgment affirmed.

Ross, J., and McKinstry, J., concurred.