De Deffeliz v. Pico

By the Court, Belcher, J.: Whether Francisco Pico purchased the premises in controversy of Candelaria Canizares, and whether he entered into possession of them and thereafter held possession adversely for more than five years before the commencement of this action, were questions for the jury, and we cannot here overrule their decision, based, as it was, upon some competent evidence. This disposes of the title of the plaintiff, so far as it was derived through the deed of Canizares to Francisco Villa, dated June 17th, 1864.

The plaintiff also claimed to deraign title to the premises through a judgment against Francisco Pico, in November, 1857, an execution and Sheriff’s sale thereunder in February, 1860, and a Sheriff’s deed made in pursuance of such sale, in September, 1864. But the testimony tended to show that at the dates of the judgment, levy, and sale, the premises were occupied by Pico with his family as a homestead, and were, therefore, under the Homestead Act of 1851, not subject to forced sale on execution. If the premises were, in fact, impressed with the character of homestead, then the levy and sale were void, and passed no title to the purchaser. It was so expressly held, by this Court in Kendall v. Clark, 10 Cal. 17, and in Williams v. Young, 17 id. 403.

The first instruction given at the request of the defendant was to this effect, and was without error, while the one presented by the plaintiff and refused by the Court expressed the contrary doctrine. The third instruction given for the defendant, to the effect that a written conveyance is not necessary to transfer possession of land, seems to have been warranted by the evidence; but whether so or not, it could not have misled the jury to the prejudice of the plaintiff.

We see no error in the record, and the judgment and order are affirmed.

Mr. Chief Justice Wallace did not express an opinion.