Cook v. McChristian

Mr. Oh. J. Murray delivered the opinion of the Court.

Mr. J. Heydenpeldt concurred. [25]This was an action of ejectment to recover a tract of land lying in Sonoma County.

The facts disclosed by the record are as follows:

Patrick McChristian, one of the defendants, purchased the land in question from one Jasper O’Farrell, on the 7th of October, 1850, and continued to reside upon it with his-family up to a short time before the commencement of this suit, when he sold the premises to one Peter Campbell for the sum of five thousand dollars, and suddenly left the State, abandoning his wife and children, then living on the premises. Campbell afterwards sold to the present plaintiffs, The testimony shows, that at the time and before the purchase, they knew of the residence and occupation of the said premises by the wife and family of said McChristian, No appearance was entered for Patrick McChristian, The other defendants appeared, and disclaimed any interest in said property, with the exception of Maria McChristian, the wife, who appeared and defended, on the ground that the said property was the homestead of herself and family, and, as such, that she was lawfully in possession of the same. Upon the final hearing of the cause, the jury found a verdict. for the defendant, from which finding and the rulings of the Court upon the issues of law involved, this. appeal is prosecuted,

The decision of this Court must turn upon the construction of the Act of April 21st, 1851, entitled “An Act to Exempt the Homestead and other Property from forced sale, in certain cases.”

[25] * Without noticing the various points raised upon the trial, we will pass to the consideration of the positions taken at bar, by the appellant’s counsel, on which depend the determination of this case. It is contended— First, that the Act of April 21st was intended to operate upon property acquired subsequent to the passage of said Act; that the Legislature may prescribe the terms on which property shall be acquired, but cannot interfere with the disposition, or annex conditions to. the alienation of that previously acquired; and Second, that there is, in the present case, no [26]