Arendt v. Mace

Thornton, J. Ejectment. Judgment for plaintiff, and defendant appeals.

The action was brought to recover possession of lot 14 in block A, Pleasanton.

The plaintiff claims under a sale by the sheriff by authority of an execution issued upon a judgment recovered against John M. Mace, one of the defendants herein, and on a deed executed by the sheriff thereon.

The defense interposed was, that at the time of the levy and sale by the sheriff lot 14 was the homestead of-defendants, who were then husband and wife.

The court found against this defense, and defendants here contend that the evidence is insufficient to sustain the decision, and that the lot in controversy was the homestead of the defendants at the time above stated.

Lots 14 and 15 adjoined. A witness testifies “that [316]when he was on the lots with the sheriff (which was when the levy was made) there was a fence all around the two lots except around the front of lot 15.” This witness also says: “ When I was there with the sheriff, I should judge that the house [the reference here is to the dwelling-house of defendants] was two or three feet from the fence between 14 and 15.....Previous to that time there was a fence between 14 and 15, but Mr. Mace had taken away a section of it when he was going to move the house right on it.” He says also that the lot was used as a garden lot by Mace; that he raised potatoes, a few trees, and garden vegetables on it.

Mace testifies that when the homestead was filed he and his wife were residing on lots 14 and 15; that part of the house was on lot'14; that lot 14 was used for garden purposes, for the purposes of the family; that he had a pump standing right in the center of lot 14. This pump was used to pump water on lot 14 from a well on lot 15. In 1881 he put a fence all around lot 14, and raised potatoes and all kinds of vegetables on it for their own use.

Mrs. Mace testified that lot 14 was used for a garden “for vegetables, potatoes, and fruit.” She also testifies to the pump on lot 14, put there for the purpose of irrigating. The well was on lot 15, and there were pipes from the well on 15 to the pump on 14; that the pump was put on 14 for the purpose of watering the garden, and for the convenience of the house and kitchen; that they got the water from this pump to use in the house in which they lived. She further states that when the homestead was filed by her on the 10th of March, 1882, there was a fence all around lots 15 and 14; “they were both inclosed in one fence.”