Tiernan v. His Creditors

Appeal by contestants from an order of the Superior Court, of the City and County of San Francisco, setting apart a homestead to the insolvent debtor. Halsey, J.

Proceeding in insolvency. On the twenty-seventh day of April, 1880, Richard Tiernan filed in the Superior Court' of the City and County of San Francisco, his petition in insolvency, under the provisions of “An Act for the relief of insolvent debtors and protection of creditors, approved May 4, 1852,” and the Acts amendatory thereof and supplemental thereto. On the eighth day of July, 1880, the said Richard Tiernan applied to the Court to exempt and set apart for the use and benefit of himself, the real property described in the declaration of homestead; which was made and filed by him for record March 1,1880. Davis & Cowell, the appellants, who were creditors of said insolvent, filed their opposition to said petition upon the grounds that the premises asked to be set apart were of greater value than five thousand dollars; that the house upon the land claimed was a double tenement, one half only of which was occupied by Tiernan, and the other half was by him rented and occupied by his tenant when he filed his declaration and ever since, and there was a separate entrance to each tenement, and no means of communication between them; that the alleged declaration of homestead which Tiernan claimed to have filed on March 1,1880, did not comply with the laws of the State providing for the making and recording of a homestead declaration. The matter was heard and tried upon affidavits, which were submitted without objection, and the homestead declaration of Tiernan. This declaration recites the cash value of the premises claimed, to be eight thousand dollars. An exception to the introduction of this declaration in evidence was reserved by the opposing creditors. The only evidence as to the character of the house upon the premises claimed as a homestead was the affidavit of Isaac E. Davis, which stated that it was a double house, intended for two families; that Tiernan never occupied but one half of it, and the other half had always been and then was occupied by a tenant of Tiernan; that the building had separate entrances, and there were no means of communication between the tenements inside.

In the petition of the insolvent for the order it was shown that the property was incumbered by a mortgage to the German Savings and Loan Society of the City and County of San Francisco, and that there was then due on the mortgage the sum of three thousand dollars. The Court granted the petition, and made an order setting apart the property claimed as a homestead. In its order the Court recited “that the property, together with the improvements thereon, is of the value of not more than five thousand dollars exclusive of incumbrances thereon.” The contestants excepted to the order, and filed their bill of exceptions.