Cooper v. Miller

HENSHAW, J.

This action was brought to quiet plaintiff’s title to one hundred and twenty acres of land in Ventura County. The defendant Miller bases his title upon a sheriff’s sale pursuant to an execution issued out of the superior court of Los Angeles County upon a judgment in his favor against the plaintiff, Florence I. Cooper, and J. F. Cooper, formerly her husband. The setting forth of plaintiff’s title requires a longer narration of facts.

Plaintiff acquired title by patent from the United States under its homestead laws to the south half of the southwest quarter of section 35. This was in 1901. The adjoining forty acres to the west, being the southeast quarter of the southeast quarter of section 34, was patented to her husband, J. F. Cooper, in 1892. In 1897 the husband made his deed of grant to his wife, plaintiff herein, for this forty acres. Thereafter, in June, 1901, the wife recorded her declaration of homestead covering the whole one hundred and twenty acres. An action for divorce was instituted by plaintiff herein against her husband in 1904, and the interlocutory decr'ee was duly entered on January 27, 1906. That decree provided as follows: “That the plaintiff is entitled to a divorce from the defendant; that when one year shall have expired after the entry of this interlocutory judgment, a final judgment and decree shall be entered granting a divorce herein, wherein and whereby the bonds of matrimony heretofore existing between said plaintiff and said defendant shall be dissolved, and that the plaintiff is entitled to have awarded and set apart to her all of the real property described in the complaint, ... all of which is community property, and the declaration of homestead thereon vacated and dissolved; and a final judgment and decree shall be entered when one year shall have expired from the date hereof, awarding all of the said real property to plaintiff and dissolving the said

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homestead. ’ ’ The final decree was entered upon January, 1907. It was silent concerning and made no final disposition of the property. Thereafter, upon April 21, 1907, upon motion of Mrs. Cooper, plaintiff in the divorce action and plaintiff here, the decree was amended, the court declaring that, through its oversight, inadvertence, and mistake, it had failed to embody in the final decree all the matters and things therein intended to be embodied. "Wherefore on motion of Donald Barker, Esq., attorney of plaintiff, the final decree heretofore entered, is hereby amended, and plaintiff is awarded relief as follows: