Michels v. Burkhard

THOMAS, J.

This is an action to quiet title. The complaint, is in the usual form. The answer of the defendant Emma A. Burkhard is a general denial of the material allegations of the complaint. By way of further defense she sets up an alleged declaration of homestead, made, executed, and recorded by her in the year 1912, covering the property involved in this action—which declaration contains recitations that she is actually, residing on such property with her family, a son, and that her husband has never made a declaration of homestead on said property or “executed any document claiming a homestead” therein—alleging that there

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has been no abandonment or conveyance of the same; that it is in full force and effect and that all. the property described in said declaration of homestead is community property, having' been acquired by defendants after their marriage otherwise than by gift, devise or descent.

As a “third defense” defendant Emma A. Burkhard alleges that on January 6, 1914, a certain-action was pending in the sup» ior court of Los Angeles County, in which she was plaintiff vnd John F. Burkhard, her codefendant here, was defendant ; that said action was an action for her own support and maintenance; that on said last-mentioned date said oause was tried; that the court gave judgment therein decreeing that said defendant pay to said” plaintiff the sum of thirty-five dollars per month, and decreeing said judgment a first lien on the land referred to in the present proceeding, as well as other real property not in controversy here; that said judgment was, on the sixteenth day of June, 1914, duly recorded, etc., and that the same has never been reversed, modified or appealed from.

Defendant John F. Burkhard did not answer.

The court found for the plaintiff, after trial of the issues so presented, holding plaintiff to be the owner of the land described in his complaint, “subject only to the lien of a certain decree”—the decree granting support, etc., above referred to. The findings further declare “that claim of defendants, and each and either of them, of any estate or interest in or to any” of said land, “except by virtue of said lien,” is without any right whatever; that defendants are now, and at all times mentioned in the complaint were, husband and wife; that defendant Emma A. Burkhard executed said declaration of homestead, and “that all the facts stated in said declaration are true, except as follows: It is not true that the said defendant, Emma A. Burkhard, at the time she executed or acknowledged the said declaration of homestead, or at any time since, made the said declaration with the intention that it was or should be for the joint benefit of herself and her husband, John F. Burkhard, but she made the said declaration for her sole benefit and for the purpose of harassing and annoying her said husband, and to cloud the title of the real property therein sought to be claimed as a homestead.” Judgment was entered accord