Fitzgerald v. Fernandez

Searls, C. This is an action to set aside and annul a decree of foreclosure against the plaintiff herein, to vacate an order of sale issued under such decree, and to enjoin D. P. Mahan, the sheriff of Contra Costa County, and Bernardo Fernandez, the other defendant, from making a sale of the mortgage premises, or from enforcing the judgment of foreclosure, upon the ground that the mortgaged property is the homestead of plaintiff.

Defendants had judgment, from which, and from an order denying a new trial, the appeal is prosecuted by the plaintiff.

There is no statement or bill of exceptions, and the case is presented on the judgment roll.

[506]Two principal questions are involved in the appeal:—

1. Were the premises in question the homestead of plaintiff and her husband at the date of the execution of a mortgage thereon (September 25, 1873), by the latter, to defendant Fernandez ?

2. Was the plaintiff concluded, and her right to a homestead, if any she had, foreclosed, by the decree of May 6, 1880, rendered in an action to foreclose the mortgage of September 25, 1873, in which action plaintiff was a party defendant, was served with a summons, and was represented by an attorney, who answered for her, but who was employed by her husband without her knowledge or authorization?

The facts essential to an understanding of the first proposition, as gleaned from the findings, are as follows:—

John Fitzgerald and plaintiff were husband and wife. On the second day of December, 1860, the former purchased from tenants in common or joint tenants, who owned undivided interests therein, less than the whole, their interest in and to the premises in question, and with his family, including the plaintiff, entered into the actual possession of a part, in the name of the whole, of the premises so purchased, and has ever since resided thereon.

On the tenth day of November, 1865, John Fitzgerald filed and caused to be recorded in due and regular form a declaration of homestead on said premises.

The land was not in the exclusive occupation of John Fitzgerald, and was not fully inclosed prior to 1869 or 1870, and was and still is owned by said Fitzgerald and others as tenants in common.