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32 Cal. 481

Seaton v. Son

California Supreme Court

Decided July 1, 1867

California Supreme Court · decided 1867-07-01

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>On the 20th day of September, 1864, John E. Brophy entered into the actual possession of a lot of land in San Francisco, at the corner of Second and Clementina streets, under a deed of conveyance from James H. Owens and wife, purporting to convey the whole lot. Brophy believed, when he entered, that the deed conveyed the title to the whole lot. Brophy continued residing on the lot with his family, until after the 4th day of October, 1864, and on the day last named filed a declaration of homestead on the same. April 10th, 1865, Brophy and wife conveyed to John C. Kernan, who, on the 4th day of May, 1865, conveyed to G. W. Seaton. Seaton died in October following, and plaintiffs were the executors of his estate. On the 14th day of October, 1864, the defendant, Son, recovered a judgment against Brophy, in said Court, which was docketed on the same day. On the 5th day of December, 1865, an execution was issued on the judgment against Bropby, and placed in the hands of defendant, Davis, who, as Sheriff, levied on and advertised the lot for sale. The plaintiffs brought this action to enjoin the sale. The Court below gave judgment in favor of the defendants, dismissing the complaint. The plaintiffs appealed.</p> <p>The other facts are stated in the opinion of the Court.</p>

Relies on Wolf v. Fleischacker · Kellersberger v. Kopp · Elias v. Verdugo

Good law ✅— No negative treatment on recordhow we know

Decided 1867-07-01

How this case has been cited

Cited by 12 later decisions — most recently September 1942

12 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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By the Court, Rhodes, J.:

¶1The uniform construction of the Homestead Act of this State has been, that a homestead cannot be carved out of land held in joint tenancy or tenancy in common. (Elias v. Verdugo, 27 Cal. 418 ; Wolf v. Fleischacker, 5 Cal. 244; Reynolds v. Pixley, 6 Cal. 167; Giblin v. Jordan, 6 Cal. 417; Kellersberger v. Copp, 6 Cal. 565.)

¶2At the time Brophy filed his declaration of homestead, he held the legal title to the undivided seventeen eighteenths of the premises, and the title to the remaining eighteenth was in another person. The plaintiffs contend that the doctrine of the cases above cited has no application where the tenant in common is in the adverse possession of the land which he claims to hold as bis homestead, or where he alone is in the actual possession. The facts necessary to raise the question in respect to the alleged adverse possession are wanting in this case. There is no proof of the adverse possession of Brophy. His entry under the deed executed to him, and his belief at the time that the deed conveyed the entire title, followed by his exclusive actual possession up to the time of the filing of his declaration, did not amount to an ouster of his co-tenant. As between tenants in common, adverse possession begins with an actual ouster. Nothing short of an actual ouster will sever the unity of possession.

¶3*484Brophy’s actual possession did not impair the right of his co-tenant, for under the fundamental rule of the relation, his possession was prima facie the possession of his co-tenant. While the co-tenant possessed the right to enter upon and enjoy the common land, it was impossible for Brophy to acquire a homestead in the "whole or any part of it, for that, if permitted, would destroy the tenancy in common in the land thus taken.

¶4The plaintiffs cannot maintain the position that they hold the equitable title to the one eighteenth in question, for in their complaint they rely upon the legal title to the whole premises, without claiming the equitable title to any portion thereof; and- besides this, the evidence fails to show that Brophy or they acquired the equitable title to the undivided eighteenth.

¶5Judgment affirmed.

¶6Mr. Justice Shatter did not express any opinion.

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