Payne v. Cummings

GRAY, C.

This is an action for an injunction to restrain an execution sale of plaintiff’s homestead. The homestead was declared upon and covered 523.94 acres of contiguous land situated in Modoc County, of the value of three thousand dollars. Of this land one hundred and sixty acres constituted what was known as the “Payne Pre-emption,” and the rest was known as the “Desert Claim.” The declaration of homestead also included certain water-rights, reservoirs, and ditches in which plaintiff had a joint interest and which interest was appurtenant to the lands in question.

The findings and judgment are to the effect that the defendants do not intend to sell, and have not advertised for sale, the Payne Pre-emption. It is also found and adjudged that there is no homestead upon any portion of the desert claim: It is further adjudged that the water-rights, ditches, dams, res*

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ervoirs, flumes, etc., are subject to the lien of the judgment and are not exempt from execution on account of the homestead.

The plaintiff, Payne, on June 7, 1897, by deed conveyed to J. H. Stewart and D. W. Jenks a one-third undivided interest in the desert claim, and the water-rights, ditches, etc., appurtenant thereto. It is decreed that whatever right, title, or interest was conveyed by said deed is not affected by the judgment, and that only the interest in said desert claim and the appurtenances thereto remaining in plaintiff be sold under the execution. The .plaintiff appeals from the whole judgment, and the defendants appeal from that portion only which declares that the deed to Stewart and Jenks conveyed a one-third interest in the property and exempts the interest so conveyed from the execution sale.

The appeal of plaintiff.

The declaration of homestead was in due form, and was duly executed and filed by plaintiff on the second day of October, 1888. It described and claimed the whole property, including the pre-emption, the desert claim, and the water-rights, reservoir, reservoir site, ditches, dams, and flumes, as a homestead, a,nd declared the value of the whole to be three thousand dollars. At that date the plaintiff was, with his family, living in a house on the pre-emption claim, and all the property was the community property of plaintiff and his wife. Plaintiff’s title was that of pre-emption and desert-land claimant, which claims he afterwards perfected, and obtained patents to all the land. Thereafter, and on the ninth day of March, 1890, the plaintiff executed to the Siskiyou County Bank, one of the defendants herein, his promissory note. On the ninth day of November, 1893, the wife of plaintiff died. In December, 1895, the said bank recovered judgment against plaintiff on said note. Thereafter, in January, 1896, the said bank caused execution to issue on said judgment, and caused the same to be levied upon the desert claim, water-right, reservoir site, ditches, etc., appurtenant thereto.