Dunn v. Tozer

Burnett, J., delivered the opinion of the Court Terry, C. J., concurring. The plaintiff claimed the lots in dispute as a homestead. They were sold by the defendant White, as sheriff of Sacramento, county, to defendant Tozer, under an execution against the plaintiff, and a certificate of sale executed by the sheriff. This was a bill to set aside the certificate, and to restrain the sheriff from executing a deed to Tozer. The Court below dismissed the plaintiff’s bill, and the plaintiff appealed. It is objected in this Court, for the first time, by the counsel of defendant Tozer, that the wife of plaintiff was not joined with him in the suit. This defect was apparent upon the face of the complaint, and the defendant might have demurred. The counsel of plaintiff insists that the objection was waived by a failure to demur. It has heen repeatedly decided by this Court, that where a defect of parties is apparent upon the face of the complaint, the objection must be taken by demurrer, or the same will be waived. (Warner v. Wilson, 4 Cal. Rep., 252; Andrews v. Mokelumne Hill Company, 7 Cal. Rep., 330; Alvarez v. Brannan, Ib., 503.) It is expressly provided, in section forty-five of the Code, that an objection of this character, if apparent upon the face of the complaint, is waived by a failure to demur. Having disposed of this point, we come to the merits of the case. It appears that the plaintiff purchased the property in the month of April, 1855, with the intention of making it a home for his family; that he moved to and resided with his family upon the premises for about thirteen months. About the time the plaintiff purchased the promises in controversy, he owned a farm, which he sold; and with the proceeds of the sale, the witness thought he purchased the lots and improvements, which are of the value of $2,500. The fact of the dedication of the premises as a homestead seems to have been satisfactorily established. It was clearly proved that the plaintiff declared, at the time he was purchasing the property, and afterwards, that he designed it for a home [171] stead; and he resided with his family upon the place for some thirteen months, when he left and went to Petaluma to occupy rented land for the purpose of carrying on a dairy. It was shown that the plaintiff owned no other real estate. For the purpose of rebutting this proof, and for the further purpose of proving an abandonment of the homestead, the defendants proved that plaintiff, in January or February, 1856, employed J. R. Adkins to sell the property—the plaintiff stating that he must sell for cash, as he intended to purchase stock for his rancho with the proceeds. Shortly after the agent was employed he visited the premises, and Mrs. Dunn stated that she was fully satisfied with her husband’s purpose to sell the place— that she could not live there, and would never return to it if she could get away. The plaintiff, likewise, told the agent that the family could not live there, as their animals had been poisoned, and they desired a more active life. The property was advertised and put up at auction, and bid in by some one for the plaintiff. The plaintiff and family left in May, 1856, and the premises were sold by the sheriff on September 23d, 1856. The defendants also proved, by a witness to whom the plaintiff had rented the property, that the plaintiff declared, about the time he left for Petaluma, he wished to sell the premises because he thought them bewitched. But we can not see, in all this, any evidence either that the plaintiff and wife never intended to dedicate the premises as a homestead, or that they intended to abandon them after they were so dedicated. The jfiaintiff sold his farm about the time he purchased the premises, and after-wards owned no other place he could call his homestead; he rented out the property and left an agent to collect the rents, and came several times to see about it. The tenant, having failed to pay the rent, and refusing to give up the property, was sued by the plaintiff, and expelled by the process of the law. The fact that both husband and wife were anxious and willing to sell the place, for the reasons stated, and that repeated efforts were made by the husband to accomplish this purpose, (which efforts failed because a satisfactory price could not be had,) does not show any intention to abandon, but only to sell, their homestead. All the conduct of husband and wife was strictly consistent with their homestead right. Ho deed was offered to" be made by the husband alone for the property. Besides this view of the case, it seems clear, from the testimony, that plaintiff and his wife had no wish to sell the premises until some nine months after they were dedicated as a homestead. They had become joint owners of the property, with the right of survivorship ; and their declarations and removal from the premises could not constitute an abandonment. The declarations of the husband could not bind the wife; and the act of going with her husband to reside upon another place could in no [172] way affect her right. There is only one way in which the right of the wife to the homestead can be extinguished, and that is by a joint deed, executed by both husband and wife, and properly acknowledged by the wife. (Dorsey v. McFarland, 7 Cal., 342; and the cases there cited.) The right of homestead having once attached, and not having been alienated, the deed from the sheriff would be a cloud upon the title, and prevent tho free alienation of the property by husband and wife. (Dorsey v. McFarland.) Under the view we have taken, the decree of the District Court must be reversed, and the cause remanded, with directions to enter a decree for plaintiff.