King v. Gotz

Searls, C. This is an action of ejectment to recover a lot of land in the form of a parallelogram, twenty-five feet by sixty feet and ten inches, near Golden Gate Avenue and Laguna Street, San Francisco. The cause was tried by the court, and findings in writing filed, upon which judgment in favor of plaintiff was entered for a strip of land across the north end of and parcel of the lot sued for, eight feet four inches in width by twenty-five feet in length.

The appeal is by plaintiff from the judgment and from an order denying a new trial.

The demanded premises constitute the southerly or rear portion of a lot 25 by 137£ feet on the south side of Tyler Street, now known as Golden Gate Avenue, San Francisco.

Plaintiff’s claim is based upon a sheriff’s deed executed to him pursuant to a sale under execution on a judgment in his favor against the defendant Andreas Gotz.

Defendants Gotz and wife claim the premises as a homestead under the statute of California, and if at the date of the inception of the lien upon which the property was sold under execution the premises were not impressed with the homestead character, plaintiff is entitled to a reversal of the judgment; otherwise it should be affirmed.

[238]The whole lot, 25 feet by 137i feet deep, southerly, was purchased by Gotz in 1873, and was community property.

Gotz, with his family, consisting of a wife and two children, went to reside upon the lot in 1873, and ever since have resided in a house upon the rear portion of said lot, the front line of the house being about one hundred feet southerly from the south line of Tyler Street, and extending across the width of the lot.

In 1876 Gotz built a two-story and basement house on the front portion of the lot, at an expense of upward of six thousand dollars; said house covers the whole width of the lot, leaving an entry on the westerly side under the main story for access to the rear of the lot. The house and fences connected with it inclosed the northerly 76-J feet of the lot, and has never been occupied by Gotz or his family, but down to the time of the sale thereof to plaintiff was rented to and occupied by tenants.

In December, 1879, Gotz executed, acknowledged, and delivered to James de Fremery and Alexander Campbell, Sen., a deed of trust, which was duly recorded December 24, 1879, and was executed to the grantees and trustees to secure the payment of two thousand five hundred dollars and interest, according to the tenor of a promissory note, for money borrowed from the San Francisco Savings Union, etc., and providing that upon payment, etc., the property should be reconveyed to Gotz, etc. This trust deed conveyed the whole lot.