117 Cal. 352 | Cal. | 1897
B. F. Ligget, having been adjudged an insolvent debtor upon the petition of his creditors, filed a petition in the superior court asking to have set apart as a homestead lots 1, 2, 3, 4, 9, and 10 of block 2, range D, of the town of Davisville, in Yolo county. The assignee appeared and contested the petition as to a portion of the property sought to be set apart.
Findings were filed by the court, from which it appears that prior to the proceedings in insolvency the wife of petitioner caused a declaration of homestead to be filed upon all of said property; that at the time of making and filing said declaration of homestead, and at the time of the hearing of said petition, the said petitioner with his wife and family resided on lot 3, upon
The court thereupon made an order setting apart to the petitioner all of said property except that portion of lot 1 "which was inclosed with the dwelling upon it, and which had been theretofore occupied by a tenant, and the petitioner appeals from so much of said order as refused to set apart to him as a homestead the whole of lot 1 with the other property.
Appellant seems to rely upon the fact that his wife included the whole of the property in her declaration of homestead, and that therefore the homestead so declared upon must be set apart under the statute. In this the appellant is mistaken. Section 1237 of the Civil Code provides: “ The homestead consists of the dwelling-house in which the claimant resides, and the land on which the same is situated selected as in this title provided.”
In Lubbock v. McMann, 82 Cal. 226, 229, 16 Am. St. Rep. 108, a declaration of homestead had been filed upon a lot upon which there was but one dwelling-house, and afterward a second dwelling was erected upon a por
It is clear, therefore, that the filing of the declaration of homestead by Mrs. Ligget did not operate to include the dwelling on lot 1, and that portion of the lot inclosed therewith, in the homestead, nor does the code permit the court to include it with the other lots, upon which the petitioner resides, in the homestead set apart by the court; nor are the findings that lot 1 with the dwelling thereon was suitable for a homestead, and that the portion set apart was also suitable as a homestead, inconsistent.
Appellant further contends that no written opposition to his petition was filed, that therefore no issue was made, and the court should have set aside the whole of the property petitioned for.
Under the Insolvent Act of 1895 it is made the duty of the court to set apart a homestead for the benefit of the insolvent “ in the manner provided in section 1465 of the Code of Civil Procedure.” That section authorized the court on its own motion, or on petition therefor, to set apart a homestead for the use of the surviving
It is further said by appellant that there can .be no findings where no issues are tendered, and that findings are useless unless they are within the issues. The assignee, however, appeared and opposed the granting of the petition so far as it included lot 1 and the dwelling thereon, so that there was in fact an issue to be passed upon, and the findings recite that the court at the request of the petitioner prepared and filed findings of fact and conclusions of law. Whether necessary or not, the making and filing of findings could not prejudice the petitioner; nor could he complain of any action of the court of that character taken at his request. No other questions are presented.
The order and decree of the court appealed from should be affirmed.
Searls, C., and Belcher, C., concurred.
For the reasons given in the foregoing opinion the order and decree of the court appealed from are affirmed.
McFarland, J., Temple, J., Henshaw, J.