Sunkler v. McKenzie

CHIPMAN, C.

Action to recover the value of a certain crop of grapes grown upon land claimed hy plaintiff to be a homestead. On June 19, 1895, plaintiff recorded his declaration of homestead upon certain farm land in Napa county; June 28th he was adjudged insolvent upon his own petition; August 19th he petitioned to have a homestead set apart to him in the insolvency proceedings; on September 23d the petition was heard and the court found that the premises were, of greater value than five thousand dollars, and that Sunkler was entitled to have a

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homestead set apart to him of value no greater than five thousand dollars; and three appraisers were appointed to appraise and admeasure the premises; that they made report November 26th, setting apart certain two hundred acres, including the dwelling, valued by them at five thousand dollars, but “the crop had been removed and did not enter as a factor in such valuation”; and on December 30th the court entered its decree confirming said report, “awarding and setting apart, to said insolvent, as a homestead, the land and premises thus admeasured”; that on June 28th aforesaid “a crop of grapes had just formed and commenced to grow on the grape vines then growing on said homestead property”; that they thereafter grew and matured about September 28th; that on September 13th, and “while said proceedings were pending to set aside the homestead above recited, an order was made by the .... court, in the matter of said .... insolvency,” directing the assignee therein (defendant in this action) to sell all the grapes growing on said land, pursuant to which he sold the crop, realizing six hundred dollars for the grapes grown on the portion of -the land awarded Sunkler as a homestead. The court made the following finding:

“That on the eleventh day of January, 1896, plaintiff, said insolvent, filed in said court and matter his petition praying that said assignee be directed to pay over to petitioner said sum of six hundred dollars, in which petition the plaintiff submitted to the court all the matters and things in his complaint herein set out, and sought an adjudication of the rights and all thereof in this action asserted by him. An answer was filed therein by the assignee objecting to the making of such an order, and said matter was duly set for hearing, the respective counsel appearing therein, whereupon testimony, oral and documentary, was offered by the respective parties and the merits of said cause were fully argued and considered, and the cause submitted on briefs to be filed. Thereafter, and on March 7, 1896, the court made and rendered its decision therein, finding upon all the issues framed by such petition and answer thereto, and adjudging that petitioner was not entitled to recover said sum or any part thereof. Judgment was thereupon entered accordingly, and thereafter and on the fifteenth day of April, 1896, written