majority">Crocker, J.

delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.

This is an action to recover the possession of two village lots, claimed by the defendants as a homestead. The wife filed her declaration as a sole trader on the fifth day of December, 1859, and on the second day of August, 1860, the plaintiff commenced an action against her, as such sole trader, and her husband, in which the property claimed as a homestead was attached. He afterward obtained judgment in the action, on which an execution duly issued, under which the property was sold and purchased by the plaintiff on the nineteenth day of January, 1861, and in due time he received a deed from the Sheriff therefor. Notice of the homestead claim appears to have been served on the Sheriff after the levy under the execution, and before the sale of the property. On the sixteenth day of February, and after the Sheriff’s sale, the wife filed a declaration of homestead in the Recorder’s office. The defendants had occupied the premises as a homestead for some time prior to any of these dates, and have so continued to occupy them ever since. The Court found for the plaintiff, and judgment was rendered accordingly, from which the defendants appeal.

The homestead right in this case was acquired by the defendants *74prior to the passage of the amended Homestead Law of 1860, by which act the time fixed for fifing the declaration of homestead was one year, to wit: April 28th, 1861. This time was extended by the Act of 1861, to April 28th, 1862, and by the Act of 1862 it was still further extended to June 1st, 1862. The declaration of homestead in this case was filed on the sixteenth day of February, 1861, fully within the time fixed by the statute, and they are therefore entitled to its full benefits, having lost no rights whatever by a neglect to file it before. The fact that it was not filed until after the Sheriff’s sale can make no difference. If any notice had been necessary, that served on the Sheriff, as well as the occupancy of the premises by the defendants, was sufficient for that purpose.

The respondent insists that the premises are the separate property of the wife, and therefore liable to be sold on execution for her debts, and no homestead claim can be established thereon. It appears that after the marriage these lots were conveyed to the husband by two separate deeds made at different times; but the same grantors, on the sixteenth day of July, 1859, the date of the last deed, also made a quitclaim deed to the wife for the same lots for the consideration of fifty dollars. She also filed in the Recorder’s office an inventory of her separate property, dated December 5th, 1859, including the premises in controversy. The conveyance to her, being a deed of purchase and not of gift, did not constitute it separate property, but it was the common property of both. It is not, therefore, necessary for us to determine the question whether the separate estate of the wife can become the homestead, respecting which some doubts have been heretofore expressed by this Court. (8 Cal. 71; 14 Id. 474; 16 Id. 217.) The fact that she included it in her inventory of her separate estate does not operate as an estoppel upon her, even if the doctrine of estoppel applies to a married woman. The plaintiff was not thereby defrauded or injured in any way.

The pleadings and evidence sufficiently established the occupancy of the premises by the defendants as their home, but upon this point the findings of the Court are entirely silent. It seems that on a portion of the premises is a building used as a billiard saloon, barroom, and theater, and it may be questionable whether that portion *75can be properly held as a homestead; but the remaining portion of the lots are clearly exempt from the execution, and the Court therefore erred in holding that the plaintiff was entitled to the possession of all the premises. The case will therefore have to be retried by the Court below, and this question can be duly investigated and determined.

The defendants, in then- answer, set up that the ^Sheriff’s deed to the plaintiff was a cloud upon their title, which they asked to have removed by the decree of the Court. This relief they will be entitled to when it is” established what portion of the premises can be and what cannot be claimed by them as exempt under the Homestead Law. As to, that” portion found to be exempt, the decree should declare the Sheriff’s deed invalid.

The judgment is reversed and the cause remanded.

Citation profile

Relationships

How this case has been treated — in progress