Fisher v. Bartholomew

HALL, J.

This is an appeal upon the judgment-roll from a judgment in favor of defendant in an action brought by plaintiff to quiet title to a piece of real estate in the possession of defendant, and situated in the city of San Jose.

From the record it appears that the property in dispute had been the separate property of one Nancy J. Packard, and at her death was the homestead of said Nancy J., and her husband, B. F. M. Packard, by virtue of a declaration made by her in due form, but was subject to the lien of a mortgage given to plaintiff by said Nancy J. and said B. F. M. Packard to secure a promissory note executed by the said Packards to plaintiff.

Plaintiff deraigns his title through a sale made by the administratrix of the estate of said Nancy J. Packard, deceased, to plaintiff, under the order of the probate court, to pay the debts of said deceased, consisting of the duly allowed claim of plaintiff, founded upon said note and mortgage. The probate proceedings were regular in form, but it nowhere appears in any of such proceedings that the property sold, which was all the property appraised in said estate, was a homestead.

Defendant deraigns title to the premises through mesne conveyances from B. F. M. Packard, the surviving husband of Nancy J. Packard, deceased.

The court below held that the title derived from the surviving husband prevailed as against the title derived from the probate sale, and we think this correct.

[583]

Upon the death of either spouse the homestead selected from the community property, or from the separate property of the party making the declaration, or joining therein, vests absolutely in the survivor. (Code Civ. Proc., sec. 1474.)

The survivor in such case takes his title by operation of law, and no order of court is necessary to perfect his title.

(In re Ackerman,

80 Cal. 208, [13 Am. St. Rep. 116, 22 Pac. 141];

Sheehy

v.