Pfister v. Dascey

Searls, C. — This is an action of ejectment to recover some forty-five acres of land in Santa Clara County.

Defendants had judgment, from which and from an order refusing a new trial plaintiff appeals.

Plaintiff’s title is based upon a constable’s deed of the [573]premises, executed pursuant to a sale under execution levied thereon February 19, 1879.

Defendants (husband and wife) claim that the premises at the date of levy of the execution were, and ever since have been, their homestead, by virtue of a declaration of homestead, executed, acknowledged, and duly filed for record on the tenth day of April, 1869.

The statute in force when defendants’ declaration of homestead was filed, like the present Civil Code, required that the person making the declaration should reside upon the premises at the date of making and filing such declaration.

To constitute a valid homestead, the claimant must actually reside on the premises when the declaration is filed. (Babcock v. Gibbs, 52 Cal. 629; Dorn v. Howe, 52 Cal. 630; Prescott v. Prescott, 45 Cal. 58; Gregg v. Bostwick, 33 Cal. 220.)

The finding of the court is that “ on the tenth day of April, 1869, and while said John Dascey and his family were occupying said premises described in the complaint, and residing thereon with the intention of making said residence their permanent home, said John made, executed, acknowledged, and filed for record in the recorder’s office in and for Santa Clara County, his declaration of homestead upon the premises described in the complaint, which said declaration was in the due and usual form provided by law,” etc.

There was testimony sufficient, if credited, to warrant the findings, and being conflicting, we are not, under the well-established rules of this court, authorized to interfere with the result reached by the court below.

2. At the trial plaintiff introduced evidence showing that an indictment ivas found against John Dascey, the defendant, in the county of Santa Clara, on the twenty-eighth day of May, 1869, charging him with the commission of a crime in that county on the 3d of May, 1869.

Plaintiff then offered to prove by several witnesses that, at the time of defendant’s arrest on said charge, “it