Donnelly v. Tregaskis

HENSHAW, J.

Plaintiff brought this action to quiet title to a lot of land in the city of Yallejo. Upon January 7, 1869,

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plaintiff and his wife were living upon the property in question under a contract of purchase, and subsequently the purchase was completed. Upon that date the wife executed a declaration of homestead upon the property, which was recorded upon the eleventh day of the same month. Differences arose between plaintiff and his wife, and in 1891 he executed a deed to her of all his interest in the property, she paying him a money consideration therefor. He left California and took up his residence in the city of New York. Subsequently his wife instituted an action for divorce, and service of summons upon the husband was obtained by publication. She secured her divorce upon September 20, 1897. The affidavit of service by publication declared that the defendant (this plaintiff) resided at No. 695 First Avenue, New York City, state of New York. The return of service showed that a copy of the summons,. attached to a true copy of the complaint, had been deposited in the post-office, directed to “James Donnelly, the said defendant, at No. 695 5th Avenue, New York City, New York.” In the decree awarding Mrs. Donnelly her divorce, the property here in controversy was set apart to her. On the fifth day of October, 1897, Mrs. Donnelly executed to this defendant a deed to the property, receiving therefor its full monetary value. Mrs. Tregaskis has remained in possession of the property ever since, claiming it against the world, her possession being undisputed until this action was commenced, November 22, 1905. Appellant bases his claim to the property upon his construction of the provisions of section 1474 of the Code of Civil Procedure, and section 4 of the Homestead Act, as amended in 1862, [Stats. 1862, p. 519], the provisions of which laws he contends give him, as the survivor of the marital community, the absolute title to the homestead. In this connection he argues that the decree of divorce was void for insufficiency of proof of service appearing upon the face of the judgment-roll as above noted, that the homestead character impressed upon the land was not destroyed and could not be destroyed excepting by joint act of the parties, and that it remained in full force and effect, notwithstanding his deed to his wife and her deed to this defendant.