Tiernan v. His Creditors

The Court: This is an appeal from an order, in insolvent proceedings, setting apart a homestead to the insolvent. 1. The declaration of homestead stated the value of the premises to be eight thousand dollars. The objection to the order on this ground is disposed of by the opinion of this Court in Ham v. The Santa Rosa Bank, 10 P. C. L. J. 411. '2. The premises consist of a lot or parcel of land thirty-five feet wide, fronting on Mission Street, in the City and County of San Francisco, by one hundred and twenty-twO and a half feet deep, which, with the improvements, are of the value of eight thousand dollars. Upon the land is a double house, intended for two families; Tiernan never occupied more than the southerly half of the same—the other half has always been and is occupied by his tenants. The double house has two distinct entrances, and there is no connection between the two tenements by which a person can go, within, from one house to the other. Under such circumstances, the Court erred in setting apart that portion of the premises not occupied by Tiernan. “The homestead consists of the dwelling-house in which the claimant resides, and the land on which the same is situated.” (C. C., § 1237.) In this case, the claimant did not reside in the structure which was occupied by his tenants. The facts of this case are widely different from the case of a person residing in a building and renting a portion or portions of it to roomers or lodgers. 3. Objection is made to the creditors being heard in this matter, before they shall have proved their debts. It might be said that the petitioner himself, having put their names in his list of creditors, is estopped from making the objection; but it is enough to say that the matter was heard in the Court below without this objection being made, and it is too late to make it here for the first time. 4. The existence of a mortgage on the premises in this case is no element in the ascertainment of the property to be set apart as a homestead or of its value. Order reversed and cause remanded for proceedings in accordance with this opinion.