In support of this position appellant cites a number of decisions of the land department, sound in their legal declaration, to the effect that a claimant cannot pre-empt land under the United States laws while residing on other land, and that, consequently, as declared by this court inTromans v. Mahlman, 111 Cal. 646, 647, [44 P. 327], the declaration of homestead cannot be extended over land not resided on. Hesnard v. Plunkett, 6 S.D. 79, [60 N.W. 159], is also relied upon in support of appellant's contention.
But appellant quite misconceives the meaning of our homestead laws, which, as correctly construed, fail to sustain his position and fail equally to give any pertinency in this discussion to the decisions of the land office and of the supreme court of South Dakota in the case above cited. But before touching upon these matters, it should be pointed out that the evidence establishes that at the time of the declaration of homestead defendant had been married and was residing upon the eighty acres acquired by pre-emption, with two minor children. The land was not fenced. Defendant had *Page 126 filed an application for a certificate of purchase on the other portion of the land outside of the pre-emption eighty acres. He had a bee ranch and bought these other waste lands for the purpose of bee culture. He occupied these lands for that purpose, and with a pick had dug and planted twenty acres of eucalyptus and other trees upon the land. Furthermore, there is no evidence tending to show that defendant had not been in the exclusive possession and control of all the lands in controversy with his improvements thereon continuously from the time of the homestead declaration; and, indeed, appellant, as has been indicated, does not attack the homestead upon any evidentiary showing other than that which we have outlined. In other words, he contends that it is a legal impossibility for the defendant to have been able to occupy for purposes of homestead under the laws of the state of California any land other than the pre-emption eighty acres. This, as we have intimated, is the fundamental error into which he falls. There is no limitation in this state as to the amount of land or the number of tracts and parcels of land (provided they are contiguous) which may be lawfully impressed with the homestead characteristics. The limitation is upon the value of the land and not upon the quantity or acreage. If the value of the land is proved to exceed five thousand dollars, the homestead protection and exemption goes only to that amount, and the excess over is subject to the demands of the creditors. (Brown v. Starr, 79 Cal. 608, 611, [12 Am. St. Rep. 180, 21 P. 973.) Again, as was long ago decided in this state, the homestead in no wise depends upon the character of the title which the homestead claimant has. A mere naked possession, without other title, may be impressed with the homestead characteristic. (Spencer v. Geissman, 37 Cal. 96, [99 Am. Dec. 248].) Whatever the character of the claim or title which the declarant has at the time of making the declaration, the homestead right will attach to such claim or title, and every improvement in the title to and including its perfection will be impressed with the homestead characteristic. (Alexander v.Jackson, 92 Cal. 519, [27 Am. St. Rep. 158, 28 P. 593]; Brown v. Starr, 79 Cal. 608, 611, [12 Am. St. Rep. 180, 21 P. 973];King v. Gotz, 70 Cal. 241, [11 P. 656]; Gaylord v. Place,98 Cal. 478, [33 P. 484].) Imperfections in or even the absence of a title is a false quantity which must be excluded from *Page 127 consideration. (Brooks v. Hyde, 37 Cal. 373.) Consequently, the character of the title to the land impressed with the homestead not being a matter which in the slightest concerns the creditor, a debtor can claim a homestead on public lands of the United States of which he has possession and maintain his homestead rights against all the world but the owner of the superior title. (Watterson v. Bonner Co., 19 Mont. 554, [61 Am. St. Rep. 527, 48 P. 1108].) And finally upon this matter, it is to be pointed out that while in the early case of Gregg v.Bostwick, 33 Cal. 220, [91 Am. Dec. 637], it was held that a homestead could be abandoned by nonuse — a construction which still obtains in some of the states — under the statute now in force, and in force at the time of the declaration of this homestead, it can be abandoned only in the manner prescribed by statute, which is declared to be "by a declaration of abandonment, or a grant thereof, executed and acknowledged." (Civ. Code, sec. 1243) Moreover, plaintiff has pleaded nonabandonment.
With these, our laws, before us, it must be quite apparent that there is nothing obnoxious to those laws in the declaration of homestead here under consideration. In other words, disregarding, as we must and do, the matter of title, or conceding that a title superior to the homestead claim was vested in the government of the United States to the lands lying outside of the pre-emption eighty acres, whatever title or possession the defendant did have in that outlying land was susceptible of being impressed with the homestead characteristic and was in fact impressed with it by his declaration and use. And this, indeed, has been directly decided in the similar case of Payne v. Cummings, 146 Cal. 426, [106 Am. St. Rep. 47, 80 P. 620], where the declaration of homestead covered five hundred and twenty-three acres, including a pre-emption claim, a desert land claim, and water rights in which the claimant had a part interest.
The South Dakota case to which reference has been made may now be briefly considered. The facts in that case were that under the territorial laws of Dakota one might impress a homestead upon land not exceeding one hundred and sixty acres. Of course the United States land laws provided for homesteads of an entirely different character, but limited the maximum acreage of those homesteads also to one hundred and sixty acres. Plaintiff had pre-empted and secured a patent *Page 128 to one hundred and sixty acres. Upon this one hundred and sixty acres he declared a homestead under the territorial laws. He then undertook to secure to himself a homestead under the United States laws to an adjoining one hundred and sixty acres of government land. To do this he sold nineteen acres of his one hundred and sixty acres homesteaded under the territorial law and moved his residence on to a corresponding nineteen acres of the one hundred and sixty acres, title to which he proposed to acquire under the United States homestead law. When the legality of the two homesteads was challenged he insisted that he was complying with the federal laws by living upon this nineteen acres of the one hundred and sixty acres, and, upon the other hand, that he was entitled to attach this nineteen acres to the one hundred and forty-one acres of his territorial homestead, and thus retain his homestead exemption to one hundred and sixty acres under the territorial law. For reasons so plain and obvious that they do not even require setting forth, the supreme court of South Dakota held that such a fraud would not be permitted. There is not even a resemblance in the situation presented in that case to that which confronts us here.