Gruwell v. Seybolt

Paterson; J. Judgment was entered in favor of defendants on demurrer to the complaint, and plaintiffs have appealed therefrom.

The complaint alleges that plaintiffs are the heirs at law of Robert Gruwell, who died intestate on July 17, 1881, leaving surviving him, besides these plaintiffs, a widow, Eliza V. Gruwell; that after the death of Robert, his widow, Eliza V., in a petition praying for letters of administration, falsely alleged that the land in controversy was community property, and that the appraisers falsely returned it in their inventory as community property; that in 1871 said Eliza Y. made and filed a declaration of homestead on the premises; that upon a petition falsely alleging that the property was community property, the superior court, by its order, set aside the premises for a homestead absolutely as her sole and separate estate; on June 12, 1882, said Eliza Y. con[9]veyed all her right, title, and interest in and to the premises to one Barnes, who afterwards conveyed to defendants Seybolt and wife; that on June 6, 1883, Seybolt and wife mortgaged to defendant Shafter, and that defendant Summers claims to be the owner of said mortgage by assignment; that plaintiffs are the owners in fee-simple of the property, and entitled to the possession thereof. The prayer is, that defendants may be required to set forth the nature of their claims to the property; that the decree setting apart the homestead be vacated; for a judgment that defendants have no right, title, or interest in the property, and that plaintiffs are entitled to the possession of the premises and to costs of suit.

Appellants contend that the allegations of plaintiffs’ ownership, and that defendants have no right, title, or interest in the property, but that they are wrongfully in possession, claiming adversely, are sufficient to show a cause of action, and that the demurrer therefore ought to have been overruled. Where, however, the pleader sets forth specifically the links in his chain of title, a general allegation of ownership will be treated as a mere conclusion from the facts stated, and will not cure any defect in the chain relied upon. It will be presumed that every fact has been alleged which can be proved. (Turner v. White, 73 Cal. 300; Heeser v. Miller, 77 Cal. 192.)

But the principal contention of appellant is, that the homestead declaration of the wife alone on the separate property of the husband did not affect the title of the heirs to the property; that notwithstanding such declaration thé property vested in them on the death of the husband, subject only to the right of the court to set aside the homestead to the surviving wife and children for a limited period. In support of this contention, he cites the following sections of the codes: Sections 1465,