Ashley v. Olmstead

Department No. 2, Myrick, J.: This is an appeal from a judgment decreeing foreclosure of mortgage and sale of the premises therein described. The questions in' controversy relate to a portion only of the premises, and to the proceedings regarding such portion.

November 17th, 1873, defendant Sarah A. Olmstead, wife of defendant Stephen H. Olmstead, executed and filed in the County Recorder’s office of the County of Santa Barbara, a declaration of homestead upon the portion above referred to. August 1st, 1876, defendant Stephen H. Olmstead executed the mortgage in question, embracing a tract of land which includes the premises declared upon as a homestead. The declaration of homestead contained a description of the premises, and the statement of the declarant “ that I am married, and that I do now reside with my family on the lot of land, * * * and that it is my intention to use and claim the said lot of land and premises, together with the dwelling-house thereon and its appurtenances, as a homestead. And I do hereby select and claim the same as a homestead.” The declaration contains no statement or estimate of the value of the premises. Mrs. Olmstead was made a party to the suit for foreclosure, with the allegation in the complaint that she “ has or claims to have some interest or claim upon said premises, or some part thereof, by virtue of a homestead declaration, which claim or interest is subject to the lien of the plaintiff’s mortgage.”

The defendants S. H. and S. A. Olmstead answered, setting up the homestead declaration and residence, and that the homestead was selected from community property: that the premises were at the selection, and are, of no greater value than $4,800, and that neither of them have selected any other homestead. The defendant Sarah A. Olmstead filed a cross-bill, setting up the facts relating to the homestead, and the value of the same, and asked judgment that the same are not subject to the lien of the [618]mortgage. The plaintiff demurred to the answer and cross-bill, and the demurrers were sustained. Judgment of foreclosure was given, directing a sale of all the premises described in the mortgage. Defendant Sarah A. Olmstead appealed from the judgment.

The plaintiff (respondent) makes two points in this Court, viz.:

1st. The appeal being from the judgment alone, (no reference being made in the notice of appeal to the orders sustaining the demurrers) this Court is confined to an examination of the record relating to the judgment only, and cannot notice the action of the Court below on the demurrers.