First National Bank v. Guerra
Before: McKee
Synopsis
Homestead—Adverse Possession—Statute of Limitations—Husband and Wife.—In April, 1861, the defendant, Concepcion de la Guerra, a married woman, filed a declaration of homestead upon a tract of land then inclosed and occupied by herself and husband, but which formed part of a large tract owned by her husband and others as tenants in common; and from that date occupied the land with her husband, claiming it as a homestead, until his death in January, 1878, and afterwards by herself until the beginning of this action. After the declaration of homestead, her husband and his co-tenants mortgaged the larger tract to one C., and the mortgage having been foreclosed, O. became the purchaser of the mortgaged premises and received his deed. Subsequently, in January, 1873, the interests of C. in the homestead premises, by proper mesne conveyances, became again vested in the husband of Concepcion and another of the original co-tenants, and was by them subsequently mortgaged, and under judgment of foreclosure sold and conveyed to the plaintiffs. In an action to quiet title, to which Concepcion was made a party, the court below found that the homestead premises had been held adversely by her from the date of the filing of the homestead.
Held: The declaration of homestead filed by Concepcion was invalid because the premises were then held by tenancy in common. The finding as to adverse possession can not avail her. It was by virtue of her marital relations with her husband that she filed a declaration and has continued to claim the premises as a homestead. There is no pretense that her husband claimed adversely to any one, and she could not claim adversely to him, or those holding under him, so long as he remained as the head of the family, which he did until his death. The declaration of a homestead was not validated by the Act of March 19, 1868. There wa.3 no interest on which the provisions of the Act could operate—the interest of her husband having previously passed from him to 0. under the foreclosure proceedings.
Opinion
The Court: Judgment and order reversed, for the reasons stated in the opinion heretofore filed herein by Department One.
The following is the opinion of Department One, together with the dissenting opinion of McKee, J.:
The Court :
The plaintiffs are entitled to recover possession of the premises in controversy, unless the homestead claim of the defendant, Concepcion de la Guerra, is a valid one, or unless the adverse possession which the Court below found she has held of the premises constitutes a bar to such recovery.
The premises, which are known as the Cañada de Tapo, form a part of the Simi Rancho, situated in Santa Barbara. County. This rancho was, at the time of his death, which occurred in February, 1858, the property of José de la Guerra y Moriega. Moriega left surviving him four sons—Pablo, Francisco, Antonio Maria, and Miguel de la Guerra. In 1861 these sons were tenants in common of undivided interests in the rancho (whether as devisees or heirs-at-law is immaterial), and the defendant, Concepcion, was then the wife of Francisco. On the twenty-ninth of April of that year, Concepcion filed in due form a declaration of homestead on the Cañada de Tapo, but the declaration so filed was invalid because the premises were then held by tenancy in common. (Cameto v. Dupuy, 47 Cal. 80; Elias v. Verdugo, 27 id. 418; Seaton [112]v. Son, 32 id. 481; Wolf v. Fleischacker, 5 id. 244; Reynolds v. Pixley, 6 id. 165.)
Subsequent to the filing of the declaration of homestead, to wit, in May, 1861, Pablo, Francisco, Antonio Maria, and Miguel de la Guerra executed to one Cook a mortgage on all their right, title, and interest in the Simi Bancho, to secure certain indebtedness due him; and on the sixteenth of October, 1861, they executed to one Oreña a deed for all their right, title, and interest therein, which deed was absolute on its face, but was intended as a mortgage to secure certain indebtedness due Oreña. The indebtedness to Cook not having been paid, Cook commenced an action to foreclose his mortgage, to which Oreña was made a party, and which action resulted in the entry, on the seventeenth of FTovember, 1863, of a judgment for the plaintiff, directing, among other things, the sale of the mortgaged property, or so much thereof as should be necessary to satisfy the judgment. Under this judgment the Simi Bancho was sold to Cook, and on October 6, 1864, he received the sheriff’s deed therefor.
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