Maloney v. Hefer

Searls, C. J. This cause was heard and decided by Department One, in an opinion filed November 30,1887.

A rehearing was subsequently granted, and the cause has been reargued before the court in Bank.

Counsel for appellants urges that the effect of the former judgment was to reverse a finding of the court below which was not attacked. We draw no such inference from the decision.

Plaintiffs and appellants sought by their action to quiet title to a lot of land claimed as their homestead, [423]having upon it a front and rear house, the former of which was rented to tenants, and the latter occupied by them as a family residence.

The wife made a declaration of homestead upon the whole property while so occupying the rear building, and had then rented such rear building, except one room therein reserved for storing the family furniture, and had removed temporarily from the premises, and remained absent therefrom for three or four months, during which time the declaration of homestead was filed and recorded. Defendant had caused that portion of the lot covered by the front house to be sold upon an execution issued on a judgment in his favor, and held a sheriff’s deed therefor.

Defendant claimed title to the front portion of the lot under this sheriff’s deed, but did not make any claim to the rear house and premises. The court found that the front house and premises were not the homestead of plaintiffs, and that defendant had title thereto; that the rear house and premises were the homestead of plaintiffs, etc., and quieted their title thereto.

Plaintiffs appealed from so much of the judgment as decreed defendant to be the owner of, and quieted his title to, the front house and premises.

As to that portion of the decree which awarded the rear house and premises to plaintiffs as their homestead and quieted their title thereto, there was no appeal.

It follows: 1. That what was said in the former opinion did not have, and could not have, any reference to the rear house and premises; and 2. That, as plaintiffs claimed the front house and premises as a homestead, all questions touching the validity of such claim were pertinent to the inquiry on this appeal.

The fact that the same declaration of homestead covered the entire property, a portion of which is not in dispute, cannot preclude an inquiry into the sufficiency of that declaration, or the existence of the facts neces