Villa v. Pico, No. 2,120

No. 2,120 | Cal. | Jul 1, 1871

By the Court, Rhodes, C. J.:

A short time previous to the Sheriff’s sale of the premises in controversy, under the execution issued upon the judgment in favor of Villa, and against Pico, a notice was served on the Sheriff by Pico, stating that he claimed the premises as his homestead. The Court below regarded that notice as having the effect to render the sale void. The notice alone could not have the effect which was attributed to it. Unless the premises were in fact his homestead, the notice or claim that .they constituted his homestead was utterly nugatory. There is no evidence in this case, showing that the premises were his homestead, at the time of the Sheriff’s sale.

For the guidance of the parties on the new trial, it is proper to say that the plaintiff failed to show title to the premises in controversy, derived from Candelaria Cañizares, because he did not show that the grant made in 1849, or the deed of the Mayor and Common Council, executed in 1858, included the premises in controversy.

Judgment and order reversed, and cause remanded for a new trial.

Mr. Justice Crockett did not express an opinion.