Barrett v. Simms

Appeal from a judgment for the plaintiff and from an order denying a new trial in the Superior Court of the County of Sacramento. Denson, J.

In an insolvency proceeding the Court made an order setting apart to the insolvent his homestead, which contained the following clause: “Nothing contained herein shall have the effect to set aside to said Simms property of any greater value than $5,000. Nor shall it prejudice the right of the assignee herein, or of any creditor of said Simms, to sell said property, or to have it sold in case a bid of over $5,000 shall be made therefor.” Afterwards an order was made for the sale of the homestead, and the same was sold for the sum of $7,000 to the plaintiff, who brought this action to recover the land.