Ornbaum v. His Creditors

California Supreme Court Oct 3, 1882 No. No. 7,290Published

Before: Myrick, Thornton

AI Brief

AI-generated · verify before citing

Holding. The court held that a homestead declaration is valid where the claimant resides within an inclosure on the land and exercises control over the entire tract, and that the description of boundaries in such a declaration need not be more specific than that required in a deed.

Issues

Whether a homestead declaration is valid when the claimant resides within an inclosure but claims a larger tract of land.
Whether the description of boundaries in a homestead declaration was sufficiently particular under the Act of April 28, 1860.

Disposition. affirmed

Quotations verified verbatim against the opinion

“His residence within the inelosure was sufficient upon the facts as found. He had title to and exercised control over all the land.”

“we do not think the Act of April, 28, 1860, (see Section 2 of said Act, Acts of 1860, p. 311), require a more particular description in a declaration of homestead than-is required in a deed.”

Synopsis

Homestead of Insolvent—Possession of Homestead.—Plaintiff, in a. d. 1867, filed a declaration of homestead upon one thousand one hundred acres of Government land. He at that time, and ever since, has resided on the land. He inclosed about three hundred acres of the land with a fence, and used the remaining portion for grazing. His neighbors also grazed the uninclosed portion, but at the same time recognized the land as plaintiff’s. Some time about the year 1875, other parties entered, by permission of the plaintiff, as pre-emptors upon portions of the lands embraced in the declaration of homestead, and obtained titles to their respective claims from the United States, the plaintiff being a witness at the Land Office for each of said pre-emptors, all of whom afterwards conveyed their lands to the plaintiff.

Held: His residence within the inclosure, upon the facts found, was sufficient to make good his homestead claim to all the land described in the declaration.

Boundary—Mountain.—A mountain or range of mountains is a definite boundary of land.

Construction of Declaration of Homestead.—The rule of construction, ‘ ‘ Ut res valeat mayis quam pereat, ” applies to a declaration of homestead.

Desciuftion in Declaration of Homestead.—The Act of April 28, I860, does not require a more particular description of the land in a declaration of homestead than is required in a deed of conveyance.

Tenancy in Common—-The finding of the Court to the effect that the plaintiff’s neighbors had grazed cattle upon the uninclosed portion of the land described in the plaintiff’s declaration of homestead in common with him, they at the same time recognizing the land as the plaintiff’s, did not show a tenancy in common in the land.

Finding—Evidence.—Evidential facts have no proper place in the findings.

Practice—Hew Trial.—The sufficienpy or insufficiency of the evidence to sustain the findings of fact can not be reviewed on appeal from a judgment, no motion for a new trial having been made, and there being no statement or bill of exceptions disclosing the evidence on which the Court below acted.

Opinion — Thornton

Thornton, J.: There is no error in this record. The Court finds the following facts:

“This is an application by plaintiff, a petitioner in insolvency, to have a homestead set aside, and the Court finds, from the evidence, that plaintiff is a married man, and was on April 29, 1867, and has ever since been.

“That on April 29, 1867, plaintiff filed and had recorded his declaration of homestead in the County of Mendocino; that the homestead was bounded as follows: On the north by Ranchera Creek; on the east by the ranches of Robert Stubblefield and Paddy Adams; on the south by what is known as Redwood Mountains, and on the west by Camp Creek. That said boundary embraced about eleven hundred acres. That at the time said declaration was filed the lands were Government lands of the United States.

“ That plaintiff with his family, resided on said lands at the time he filed said homestead declaration, and has resided within said boundaries with his family ever since. That he inclosed with a fence about three hundred acres thereof. That he has at all times used the portion not inclosed for grazing. That the neighbors have also grazed the uninclosed [458]portion in common with plaintiff, but at same time recognized the lands as plaintiff’s.

“ That some time about the year 1875, some three or more' persons took up pre-emption claims of one hundred and sixty acres each within said boundaries and occupied said pre-emption claims with permission of the plaintiff, proved up said claims at the land office, and obtained title thereto from the United States. The plaintiff was a witness for each of said pre-emptors at the land office.

“That plaintiff has since become invested with the title from said pre-emptors of the lands they pre-empted. That said lands do not exceed in value five thousand dollars.” And upon these facts, ordered a decree for Ornbaum setting apart the homesteads, which was accordingly entered. The Court. found all the facts essential to the constitution of a homestead. There was no motion for a new trial, and this appeal is from the judgment.

Now it is objected that Ornbaum h&d no actual residence on the land outside of his inclosure at the time the declaration of homestead was filed. His residence within the inelosure was sufficient upon the facts as found. He had title to and exercised control over all the land. The evidential facts inserted -in the findings of fact (we refer to those as to tha neighbors grazing the uninclosed portion, and the taking up of pre-emption claims on the land) have no proper place there, but they, with the other facts found, and which follow them in order in the findings, sustain the judgment of the Court.

Ornbaum v. His Creditors

AI Brief

Synopsis

Opinion — Thornton

More from California Supreme Court

Related research

Dissent — Myrick

AI Brief