66 P. 491 | Cal. | 1901
The plaintiff is the wife of Frederich Tappendorff, and seeks by this action to recover from the defendant the possession of certain real property in the county of Humboldt. In her complaint, after setting forth facts under which a homestead might be declared by her husband, she alleges that on the sixteenth day of May, 1878, her husband executed and acknowledged "a valid declaration *420 of homestead" upon said premises, and that the same was on said day recorded in the office of the county recorder. A copy of the said declaration is attached to the complaint, and by averment made a part thereof. This copy contained the statement "that the actual cost value of said property is three thousand dollars." The plaintiff further alleges that on October 20, 1897, her husband executed to the defendant a lease of said land for the term of five years, under which the defendant entered and took possession thereof; that she did not unite or join with her husband in the execution of the said lease; that she has demanded possession of the said premises from the defendant, and that he has refused to deliver the same, and still withholds them from her. The defendant demurred to the complaint, upon the ground that there was a defect of parties plaintiff, in that her husband should have been joined with her; that the plaintiff has not the capacity to sue, and that the complaint does not state facts sufficient to constitute a cause of action. The court overruled the demurrer, and the defendant failing to answer, his default was entered on the sixth day of April, 1899. Thereafter — April 13th — the plaintiff applied to the court for the relief demanded in her complaint, and upon producing the original declaration of homestead, as recorded in the office of the county recorder, wherein was stated the cash value of the premises, instead of the cost value thereof, the court made an order permitting her to amend her complaint by striking out, in the copy of the declaration of homestead attached thereto, the word "cost," in the paragraph above quoted, and inserting therein, in its place, the word "cash." This amendment was made without any notice to the defendant, and without his consent, and neither the said amendment, nor a copy of the complaint as amended, was served upon him. Immediately after making the amendment, the plaintiff presented to the court evidence in support of her complaint, and judgment was thereupon rendered in her favor. From this judgment the defendant has appealed, bringing the appeal here upon the judgment roll, including a bill of exceptions.
The validity of the declaration of homestead which was annexed to the original complaint is to be determined by a consideration of its terms, and not according to the opinion of the pleader. If the complaint had alleged that on May 16, 1878, the husband of the plaintiff executed and acknowledged *421 the following instrument (setting forth the declaration of homestead), and filed the same in the recorder's office, and that the same is a "valid" declaration of homestead, such statement would not prevail over the terms of the instrument itself. Annexing the copy of the declaration of homestead to the complaint, and making it a part thereof, had, however, the same effect as if it had been set forth at length in the body of the complaint. It was essential to the plaintiff's cause of action that her complaint should show that the land sued for was covered by a valid declaration of homestead. Otherwise she could not sue alone, but the right of action would have been in her husband. (Code Civ. Proc., sec. 370.)
The right to a homestead, and to enjoy the privileges and immunities incident thereto, is purely a statutory creation, and exists only upon a compliance with the requirements of the statute. What the statute has specifically prescribed as a requisite for impressing the incidents of a homestead upon a tract of land is mandatory, and cannot be dispensed with. (Cunhav. Hughes,
The copy of the declaration annexed to the complaint, therefore, failed to show that there was a valid homestead upon the land sued for, and the demurrer should have been sustained. It was immaterial that the original declaration of homestead was good, since the complaint was to be judged by itself, and not by the facts upon which the plaintiff might seek to establish her cause of action.
The amendment of the complaint had the effect to set aside the default of the defendant previously entered, and the complaint as amended should then have been served upon him. *422 (Thompson v. Johnson,
The judgment is reversed.
Garoutte, J., and Van Dyke, J., concurred.
