Swan v. Walden

SHAW, J.

Defendants Edward and Louella Walden were husband and wife and, on May 15, 1907, were the owners as joint tenants of lots 3, 4 and 5, block L. Lugonia Park, city of Redlands, together with all water appurtenant to said property and together with four shares of the capital stock of the Lugonia Park Water Company and also two and two-thirds shares of the capital stock of the Eastberne Water Company. On August 17, 1907, the defendant Edward Walden executed and delivered to plaintiff a grant deed purporting to convey to plaintiff all his interest in the property above described. Thereafter plaintiff, alleging himself, by virtue of this deed, to be the owner .of an undivided one-half interest in and to all of the said property, brought this suit to have the same partitioned. In her answer defendant Louella Walden denied the execution of the deed to plaintiff, and as an affirmative defense alleged that prior to the execution of the deed to plaintiff, to wit, on May 15, 1907, she executed and caused to be recorded a declaration of homestead upon “lots No. 3 and 4 of block L, according to plat of Lugonia Park, ... together with the water right appurtenant thereto, consisting of four shares of the capital stock of the Lugonia Park Water Company, a corporation.” At the trial and in response to this issue so tendered, the court found that, as alleged, defendant Louella Walden did execute and record her “declaration of homestead upon lots three and four of block L of the property mentioned and described in the complaint, together with the water right, consisting of four shares of. the capital stock of the Lugonia Park Water Company”; but further found she was not at the time in the exclusive occupation or possession of said property upon which she attempted to impress such homestead, and therefore the declaration of homestead was without force or effect. As a conclusion of law, the court held that plaintiff and Louella Walden were each the owner- of an undivided one-half interest in all the property described in the deed from Edward Walden to plaintiff. An interlocutory decree followed, from which- defendant Louella.

[130]

Walden appealed.

(Swan

v.

Walden,

156 Cal. 195, [134 Am. St. Rep. 118, 20 Ann. Cas. 194, 103 Pac. 931].) As shown by that appeal, appellant contended, first: That the estate held by herself and her husband in the property in controversy was a tenancy by the entirety; hence, the husband was without power to convey any interest therein, and the deed to plaintiff was therefore null and void as a conveyance of any property. Second, that, at all events, the deed was ineffectual as a conveyance of the property upon which the homestead had been impressed. The supreme court reversed the interlocutory decree from which said appeal was prosecuted, and, in effect, held that the conveyance made by Edward Walden to plaintiff was a sufficient conveyance of all the property described, except that which was made the subject of the declaration of homestead so executed by Louella Walden, and in the