McDonald v. Badger

Crocker, J. delivered the opinion of the Court—Norton, J. concurring.

This is an action to recover the possession of a lot in the City of San Francisco, sixty-eight feet nine inches front on Second Street, and one hundred and twenty-five feet in depth. The plaintiff claims title to the premises under and by virtue of a deed executed [396]by the United States Marshal, dated October, 1860, under and in pursuance of a Marshal’s sale on execution on the thirty-first day of January, 1860, issued upon a judgment recovered by the plaintiffs in the United States Circuit Court for the Northern District of California against the defendant on the nineteenth day of November, 1858. Mrs. Badger, the wife of the defendant, intervened, claiming the premises as a homestead, and as her separate property.

The principal questions which arise in this case depend upon these claims to the property set up by the wife: the first of which we propose to examine is that relating to the homestead. It appears that«in 1855 Badger executed, acknowledged, and recorded an instrument purporting to be a declaration of homestead on thirty feet of these premises, which was all he owned at that time. This paper can have no force or effect—as the law in force at that time did not authorize the execution or recording of such instruments. He was, however, residing upon this lot of thirty feet with his family, and it constituted and was his homestead under the laws then in force. Afterwards, on the third day of May, 1861, Mrs. Badger duly executed, and acknowledged, and procured to be recorded, a declaration of homestead, which includes not only the thirty feet occupied as a homestead in 1855, but the adjoining lot, which had been purchased since 1855, of thirty-eight feet nine inches front by one hundred and twenty-five feet in depth. This declaration of homestead includes the premises now in controversy.

The referee finds that the lot, thirty feet wide, with the house, is of the value of $7,500, and the thirty-eight feet nine inches front is of the value of $4,800. The appellants contend that as the value of these lots exceed the $5,000, the value of the homestead allowed by law, and as they are separate lots, acquired by different titles, therefore the homestead claim should at least be limited to the lot thirty feet front on which the dwelling-house stands, and that the lot thirty-eight feet nine inches front should be held and deemed free and clear of the claim of homestead. There can be no valid objection to including more than one of several contiguous lots in the homestead claim, provided their value does not exceed in the aggregate $5,000, the sum allowed by the homestead law. But a person cannot thus include more than one lot in the home