Tromans v. Mahlman
Before: Belcher
Synopsis
.Appeal from a judgment of the Superior Court of Alameda County, and from an order denying a new trial.
The specifications of insufficiency of the evidence to justify the decision referred to in the opinion were as follows: “The evidence did not show, and does not show, that the plaintiff, Joseph Tromans, is not the owner of the tract of land mentioned and described in the complaint in said action; or in any part thereof, either in fee-simple absolute, or at all. On the contrary, it is shown by the evidence in said cause that the plaintiff, Joseph Tromans, now is, and was at the time of the commencement of said action, and for a long time prior thereto, the owner of the tract of land mentioned and described in the complaint, and every part thereof, in fee-simple absolute. The evidence did not show, and does not show, that the defendants, Henry Mahlman and Mary Jane Mahlman-, are the owners of said tract of land described in the complaint, and in said action, and every part thereof.” The facts in the case were stipulated in open court at the trial, with the exception of evidence, to be presented upon the issue, whether Mary Jane Mahlman was actually residing on the land and premises described in the complaint at the time a declaration ■of homestead was made and filed for record, leaving as -questions of law, to be decided by the court, whether the lands in controversy were a valid homestead at the time -of the commencement of the action of Fish v. Lee et al; .and did the plaintiff acquire any title to the land by the sheriff’s deed under foreclosure sale in that action? Further facts are stated in the opinion.
Belcher, C. In June, 1882, one Lee conveyed to the defendant Henry Mahlman adot of land in the town of Haywards, Alameda County. In May, 1883, Mahlman conveyed the lot as a gift to his wife, the defendant Mary [4]Jane Mahlman. When these conveyances were executed, one Fisk held a mortgage made by Lee on the lot, and both conveyances were made subject to the mortgage. On the twenty-second day of August, 1883, Mrs. Mahlman executed and caused to be recorded a declaration of homestead on the lot, which was in all respects in accordance with the provisions of section 1263 of the Civil Code. In January, 1884, Fisk commenced an action against the mortgagor, Lee, and Mrs. Mahlman, to foreclose his mortgage, and such proceedings were subsequently had that a decree of foreclosure was duly made and entered against the defendants therein. Under this decree an order of sale was issued, and the property was regularly sold to the plaintiff herein, who in August, 1887, received the sheriff’s deed therefor.
In December, 1887, the plaintiff commenced this action to recover possession of the lot, alleging in his complaint that he was the owner of the same in fee-simple absolute. The defendants, by their answer, denied that plaintiff was the owner of the lot, or of any pai't" thereof, in fee-simple absolute, or at all.
After trial, the court found the facts as follows:—
“1. That the 'plaintiff, Joseph Tromans, is not the owner of the tract of land mentioned and described in the complaint herein, or of any part thereof, either in fee-simple absolute, or at all.
“ 2. That the defendants, Henry Mahlman and Mary Jane Mahlman, are the owners of said tract of land, and of every part thereof.”
Judgment was accordingly entered in favor of the defendants, from which, and from an order refusing a new trial, the plaintiff appeals.
It is admitted by counsel for appellant, that since Henry Mahlman was not made a party to the foreclosure suit, the judgment should be affirmed if the demanded premises had become the homestead of defendants before that suit was commeifbed; but it is contended that the declaration of homestead, which was executed and filed for record by Mrs. Mahlman, did not create a valid [5]
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