13 Cal. 623 | Cal. | 1859
Terry, C. J. concurring.
This was ejectment, to recover a house and lot in Yrcka, claimed by the plaintiff to be homestead property. The Court rendered a judgment for the defendants, upon a special finding of facts by the jury. The facts so found were these : That the premises are situated in the town of Yreka, on a public street in a business portion of the town, the town containing a population of some two thousand souls, and the site of the town being mineral land; that the defendants bought the lot at Sheriff's sale, in February, 1855, and have been in possession since; that one Alexander was in actual possession of the property at the time of the bringing of the suit, and for twenty-nine days before; that the property was used by Klink and wife, whilst they owned it, for family and business purposes, and equally for each; that they had another and different place of residence before the fire in 1854, which consumed the first building, and this other resi
We have taken these facts from the findings, in the order in which they are found.
Upon this case thus made, the judgment of the Court rests :
1. The jury found that the defendants were not in the actual possession or occupancy of the premises at the time of the suit. In ejectment, suit must be brought against the terre-tenant or party in possession. This we have held in several cases. (See Adams on Ejectment, 512, to the same effect.)
2. The complaint was not verified. The answer sets up two
ETo objection having been taken to the answer*, on the score of this inconsistency, we think the defendant might, as under the old system of pleading, rely on the matter of his last defense, unaffected by the statements in a prior separate and distinct plea or defense.
This view renders it unnecessary to consider the other questions, elaborately argued, on the embarrassing and perplexing subject of homestead property.
Judgment affirmed.