Ornbaum v. His Creditors

Thornton, J.: There is no error in this record. The Court finds the following facts: “This is an application by plaintiff, a petitioner in insolvency, to have a homestead set aside, and the Court finds, from the evidence, that plaintiff is a married man, and was on April 29, 1867, and has ever since been. “That on April 29, 1867, plaintiff filed and had recorded his declaration of homestead in the County of Mendocino; that the homestead was bounded as follows: On the north by Ranchera Creek; on the east by the ranches of Robert Stubblefield and Paddy Adams; on the south by what is known as Redwood Mountains, and on the west by Camp Creek. That said boundary embraced about eleven hundred acres. That at the time said declaration was filed the lands were Government lands of the United States. “ That plaintiff with his family, resided on said lands at the time he filed said homestead declaration, and has resided within said boundaries with his family ever since. That he inclosed with a fence about three hundred acres thereof. That he has at all times used the portion not inclosed for grazing. That the neighbors have also grazed the uninclosed [458] portion in common with plaintiff, but at same time recognized the lands as plaintiff’s. “ That some time about the year 1875, some three or more' persons took up pre-emption claims of one hundred and sixty acres each within said boundaries and occupied said pre-emption claims with permission of the plaintiff, proved up said claims at the land office, and obtained title thereto from the United States. The plaintiff was a witness for each of said pre-emptors at the land office. “That plaintiff has since become invested with the title from said pre-emptors of the lands they pre-empted. That said lands do not exceed in value five thousand dollars.” And upon these facts, ordered a decree for Ornbaum setting apart the homesteads, which was accordingly entered. The Court. found all the facts essential to the constitution of a homestead. There was no motion for a new trial, and this appeal is from the judgment. Now it is objected that Ornbaum h&d no actual residence on the land outside of his inclosure at the time the declaration of homestead was filed. His residence within the inelosure was sufficient upon the facts as found. He had title to and exercised control over all the land. The evidential facts inserted -in the findings of fact (we refer to those as to tha neighbors grazing the uninclosed portion, and the taking up of pre-emption claims on the land) have no proper place there, but they, with the other facts found, and which follow them in order in the findings, sustain the judgment of the Court. The other objections are expressed as follows: 1. We think Ornbaum had no interest whatever in the land, but if he did, it was only a tenancy in common; and, 2. The premises were not particularly described in the declaration, as expressly required in the amendatory Act of April 28,1860. We do not think these objections are tenable. It is evident on the findings of fact that there was no tenancy in common, and as to the description, it would be sufficient to pass the land in a conveyance, and we do not think the Act of April, 28, 1860, (see Section 2 of said Act, Acts of 1860, p. 311), require a more particular description in a declaration of homestead than-is required in a deed. It would be a novel prop [459] osition of law in this State, that a mountain, or range of mountains, is not a definite boundary of land. It is as much so as a tree, a rock, or a stream one half mile wide, in which the boundary would go ad medium Jilum aquae. The boundary usually goes to the middle of the natural object named, except in the case of a range of mountains, when it goes to the comb, or dividing line of the ridge. A deed is always construed ut res magis valeat quam per eat. This rule applies to a declaration. See Roe v. Tranmarr, 2d Smith’s Lead. Cas., 511; Broom’s Legal Maxims, 521-2-3. We will add here that the paper in the transcript designated by the heading “Finding and decision of the Court,” on pages 15 and 16 of the transcriptas the opinion of the Court, and does not belong properly to the record. The findings of fact are on pages 17 and 18, and are inserted above. The former paper, in our opinion, does not militate against the conclusion here reached. At any rate there was no motion for a new trial, and no statement or bill of exceptions disclosing the evidence on which the Court below acted. We can not therefore determine the sufficiency or insufficiency of the evidence to sustain the findings of fact. The judgment is affirmed. So ordered. Sharpstein, J., McKee, J., and Morrison, C. J., concurred.