Stockton v. Knock

Foote, C. — The plaintiff brought an action of ejectment against the defendant, the administrator of her divorced husband’s estate.

The land sued for was a homestead, duly declared such by the husband from community property during the lifetime of both the parties and the continuance of their marriage. The trial court gave judgment for the defendant, and from that and an order refusing to grant her a new trial the plaintiff has appealed.

In her complaint she claims the right to enter, take possession, and hold the land in dispute, and that the defendant wrongfully withholds the possession thereof from her, which allegations he by his answer denies. It would therefore appear as if, under the general issue thus pleaded, the defendant had a right to introduce in evidence the judgment roll showing the divorce proceedings "had between the parties in another action, which tended to show as a matter of fact that the plaintiff did not have the right, as she claimed, to enter upon the land in dispute at the time of the commencement of her action. (Semple v. Cook, 50 Cal. 26.)

There.was nothing in the answer.which confessed the plaintiff’s right of entry, and pleaded the judgment in the divorce proceedings by way of estoppel as an avoidance of such right of entry. Therefore the case of Young v. Wright, 52 Cal. 407, cited to us by the appellant, is not in point.

We hold, against the appellant’s contention, that the judgment roll, the stipulation of counsel as to the disposition of the property mentioned in the petition, for a divorce, and the will of said H. C. Stockton, deceased, were admissible in evidence. It is next to be considered [427]what effect, if any, the decree of divorce had upon the plaintiff’s claim to a right of entry and possession as against the administrator of the estate of the deceased, H. 0. Stockton, her divorced husband.

The petition for a divorce contains this averment: “ Plaintiff further says that defendant owns a tract of land of 320 acres, the homestead of plaintiff and defendant, situate on Susan River, about seven miles northwest of Susanville, in this county, known as Stockton mill, that he also owns horses, cattle, sheep, and hogs, the number of which is unknown to plaintiff, and other personal property; that all said property is common property, and was acquired since the marriage of plaintiff and defendant, and was not acquired by gift, devise, or descent.”