58 P. 311 | Cal. | 1899
The action is to quiet title. The facts were stipulated. Jesse H. Butler was the husband of Ida Merrill Butler in March, 1882, at which time the wife filed a declaration of homestead upon the separate property of the husband. In February, 1892, Ida M. Butler was adjudged insane and committed to the asylum at Agnews. In April, 1892, the husband filed a petition to be allowed to sell the homestead under the provisions of an act entitled "An act to enable certain parties therein named to alienate or encumber homesteads." (Stats. 1873-74, p. 582.) The order was granted and the sale was effected. The defendants claim title under this sale. Their title was upheld by the trial court, and judgment was rendered for them accordingly.
The first contention of appellant is against the constitutionality of the act. We think the title of the act sufficiently indicates its purpose, and, as for the other matters, they must be considered as adversely adjudicated by the case of Rider v. Reagan,
It is next contended that the court never acquired jurisdiction to order the sale because of the omission of certain statutory requirements from the petition, and that, therefore, the sale is void. Section 3 of the act requires that in the *26
petition shall be stated the value of the homestead to be sold or encumbered. In the petition which was the foundation of these proceedings there is a total absence of such allegation, nor are there any averments from which an expression of the value may be derived. The court acquires jurisdiction to order a judicial sale only upon the filing of a petition sufficient in form. (Townsendv. Gordon,
The judgment is therefore reversed and the cause remanded.
Van Dyke, J., and McFarland, J., concurred.