23 Cal. 393 | Cal. | 1863
Lead Opinion
delivered the opinion of the Court—Norton, J. concurring.
This is an action to recover the possession of a lot in the City of San Francisco, sixty-eight feet nine inches front on Second Street, and one hundred and twenty-five feet in depth. The plaintiff claims title to the premises under and by virtue of a deed executed
The principal questions which arise in this case depend upon these claims to the property set up by the wife: the first of which we propose to examine is that relating to the homestead. It appears that«in 1855 Badger executed, acknowledged, and recorded an instrument purporting to be a declaration of homestead on thirty feet of these premises, which was all he owned at that time. This paper can have no force or effect—as the law in force at that time did not authorize the execution or recording of such instruments. He was, however, residing upon this lot of thirty feet with his family, and it constituted and was his homestead under the laws then in force. Afterwards, on the third day of May, 1861, Mrs. Badger duly executed, and acknowledged, and procured to be recorded, a declaration of homestead, which includes not only the thirty feet occupied as a homestead in 1855, but the adjoining lot, which had been purchased since 1855, of thirty-eight feet nine inches front by one hundred and twenty-five feet in depth. This declaration of homestead includes the premises now in controversy.
The referee finds that the lot, thirty feet wide, with the house, is of the value of $7,500, and the thirty-eight feet nine inches front is of the value of $4,800. The appellants contend that as the value of these lots exceed the $5,000, the value of the homestead allowed by law, and as they are separate lots, acquired by different titles, therefore the homestead claim should at least be limited to the lot thirty feet front on which the dwelling-house stands, and that the lot thirty-eight feet nine inches front should be held and deemed free and clear of the claim of homestead. There can be no valid objection to including more than one of several contiguous lots in the homestead claim, provided their value does not exceed in the aggregate $5,000, the sum allowed by the homestead law. But a person cannot thus include more than one lot in the home
The next questions to examine relate to the other lot thirty-eight feet nine inches front. It appears that on the eighteenth day of December, 1855, the defendant, Badger, purchased this lot and took a deed therefor from one Slade ; that afterwards Badger sold and conveyed the southern portion, to wit: thirty-four feet front on Second Street by one hundred and twenty-five feet deep, to one Scott, thus leaving the title to the northern portion, four feet nine inches wide by one hundred and twenty-five feet deep still in Badger. On the twenty-fourth day of April, 1857, Scott conveyed this south thirty-four feet by deed of bargain and sale to Mrs. Badger for the sum of $3,000, of which $1,000 was paid in cash and the remaining $2,000 was secured by a mortgage on the premises executed by Badger and his wife jointly, and they also gave their joint promissory note for the amount, which note and mortgage still remain unpaid.
The intervenor claims that she made this purchase of Scott for her own sole, and exclusive use, and benefit, as her own separate estate; and that the purchase money paid thereon was her own'1 separate property. This deed is not copied into the transcript, and we are unable to determine from the record whether the property was conveyed to her sole, separate, and exclusive use, or not. The referee who tried the cause found, that the cash payment of one thousand dollars was made as follows, to wit: That one Phinney, who resides in the City of Boston, had before then left with said Wm. Gr. Badger, for collection, a promissory note of another person, with authority to loan out the money, when collected, on Phinney’s account; that the note was paid to Badger shortly before
The law is well settled by the decisions of this Court, that a deed of purchase to the wife is presumptive evidence that the property thereby conveyed belongs to the community, and is liable as such to the debts of the husband, and can be disposed of by him like any other community property. But this presumption may be overcome by clear and satisfactory proof that it was acquired by the separate funds or property of either the husband or wife; and the burden of proof to rebut the presumption lies upon the party claiming it as separate. The fact that such a deed is made to the wife, instead of the husband, creates no presumption that the property is her separate estate. The conveyance being by>deed of purchase, excludes all presumption that this property was acquired by gift, bequest, devise, or descent. (Meyer v. Kinzer, 12 Cal. 247; Smith v. Smith, Id. 216; Pixley v. Huggins, 15 Id. 127.) The proof in this case does not clearly and satisfactorily show that this lot was purchased with the separate funds or property of the wife. It cannot, therefore, be held or deemed her separate estate; but it was community property, and liable to the debts of the husband, and subject to his control and disposition.
It further appears, that, on the third day of June, 1857, the defendant, Badger, filed his petition in a proper Court, to obtain a
The respondents contend, that the action is barred by the Statute of Limitations, on the ground that the defendant has not been in the possession of the thirty-four-foot lot since the deed from him to Scott, dated in January, 1856, and this action was commenced December 21st, 1860. This, however, was within five years, the time limited for actions of this kind. But, even if it had not been, the defendant, Badger, has been in possession of this lot ever since the deed from Scott to his wife. The deed, as has been shown, conveyed a community, and not a separate, estate; the possession followed the estate, and the husband is therefore to be deemed as having been in possession under it, and not the wife. This defense is therefore untenable. It follows, from the view we have taken of this case, that the referee erred in finding that the plaintiffs were not entitled to the possession of the lot, described as fronting thirty-eight feet nine inches on Second Street, and running back one hundred and twenty-five feet.
The judgment is therefore reversed, and the cause remanded for a new trial.
Rehearing
delivered the following opinion—Norton, J. concurring:
A rehearing is urged on the ground that one point presented by the appellant in bis brief was not passed upon in the former, opinion. It is contended that as the homestead declaration covers the whole property, including both lots, therefore, even though the value exceeds $5,000, the excess cannot be recovered in ejectment: that it was not liable to forced sale on execution. Several decisions of this Court are cited which sustain the principle that a judgment is no lien upon the homestead, and that the same cannot be sold on execution. (4 Cal. 23; 16 Id. 181-213; 17 Id. 403.) In another case cited, that of Gary v. Estabrook (6 Cal. 457), it was held, that where the homestead claimed by the defendant in execution had been ascertained by appraisement to exceed $5,000, a sale thereof should not be made by the Sheriff under execution until an exact appraisement of the value of the premises is obtained, so that he could sell and convey a definite undivided interest therein. That is, to illustrate, if the homestead should be found, upon appraisement, to be worth $10,000, then as the undivided one-half only would be exempt under the Homestead Law, he could then proceed to sell and convey the other undivided half not exempt. This rule properly applies to a case of a single lot or tract of land on which the dwelling of the debtor stands, but it is not necessary to take that course where the homestead covers two or more lots, on only one of which is the dwelling of the debtor. As stated in the former opinion, the debtor may include several contiguous lots in his homestead claim, provided they do not exceed in value $5,000; but if the lot on which the dwelling stands equals or exceeds in value the $5,000, the attempt to include any other lot or lots will fail. If inserted in the declaration filed, they will not in such case form any part of the homestead, any more than as though they had not been inserted therein. The law requires that the debtor act in good faith, and not under cover of a law made for his special benefit, attempt to embarrass his creditors, or hinder, or delay them in collecting their just debts. It is better for the debtor to treat the lot or lots not occupied by the dwelling as free
The rehearing is denied.