Dunn v. Tozer
Before: Burnett
Synopsis
Where a defect of parties is apparent upon the face of the complaint, the objection must be taken by demurrer, or the same will be waived.
The fact that both husband and wife were anxious to sell their homestead, and the husband made repeated efforts for that purpose, but failed because a satisfactory price could not be obtained, does not show an intention to abandon the homestead as such.
Where property has been dedicated as a homestead, the husband and wife become joint owners thereof, with the right of survivorship, and their declarations of intention to sell and remove from the premises will not constitute an abandonment.
¡Nor will the declarations of the husband bind the wife. The act of the wife in going with her husband to reside u$on another place, will in no way affect her right.
The only way in which the right of the wife to the homestead can be extinguished, is by a joint deed executed by both husband and wife, and properly acknowledged.
The right of homestead having once attached, and not having been alienated, a deed from the sheriff, under an execution against the husband, would be a cloud upon the title, and prevent the free alienation of the property by the husband and wife.
Burnett, J., delivered the opinion of the Court Terry, C. J., concurring.
The plaintiff claimed the lots in dispute as a homestead. They were sold by the defendant White, as sheriff of Sacramento, county, to defendant Tozer, under an execution against the plaintiff, and a certificate of sale executed by the sheriff. This was a bill to set aside the certificate, and to restrain the sheriff from executing a deed to Tozer. The Court below dismissed the plaintiff’s bill, and the plaintiff appealed.
It is objected in this Court, for the first time, by the counsel of defendant Tozer, that the wife of plaintiff was not joined with him in the suit. This defect was apparent upon the face of the complaint, and the defendant might have demurred. The counsel of plaintiff insists that the objection was waived by a failure to demur.
It has heen repeatedly decided by this Court, that where a defect of parties is apparent upon the face of the complaint, the objection must be taken by demurrer, or the same will be waived. (Warner v. Wilson, 4 Cal. Rep., 252; Andrews v. Mokelumne Hill Company, 7 Cal. Rep., 330; Alvarez v. Brannan, Ib., 503.)
It is expressly provided, in section forty-five of the Code, that an objection of this character, if apparent upon the face of the complaint, is waived by a failure to demur.
Having disposed of this point, we come to the merits of the case. It appears that the plaintiff purchased the property in the month of April, 1855, with the intention of making it a home for his family; that he moved to and resided with his family upon the premises for about thirteen months. About the time the plaintiff purchased the promises in controversy, he owned a farm, which he sold; and with the proceeds of the sale, the witness thought he purchased the lots and improvements, which are of the value of $2,500.
The fact of the dedication of the premises as a homestead seems to have been satisfactorily established. It was clearly proved that the plaintiff declared, at the time he was purchasing the property, and afterwards, that he designed it for a home[171]stead; and he resided with his family upon the place for some thirteen months, when he left and went to Petaluma to occupy rented land for the purpose of carrying on a dairy. It was shown that the plaintiff owned no other real estate.
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