Perry v. Ross

Temple, C. This is an action to quiet title. Plaintiff avers that she is the widow of Jesse L. Perry, deceased; that decedent died January, 1891, leaving him surviving plaintiff, his widow, and eight children; that letters of administration were duly issued to plaintiff, who qualified and administered the estate. Said- Perry, in his lifetime, to wit, June 28, 1890, purchased from the Southern Pacific Railroad Company the tract of land in controversy, and said company, for a valuable consideration paid to it, agreed to make to said Perry, his heirs or assigns, when the deferred payments should be made, a good and sufficient deed for the land; that the land was purchased with community funds; that said Perry [17]was then residing upon the land with his family, and on the eleventh day of December made and filed for record his declaration of homestead in due form; that thereafter, in the estate of said Perry, the same was duly set apart to plaintiff for a homestead; that the court did also find that the total value of said estate was less than fifteen hundred dollars, and thereupon set over to plaintiff all of the estate of said Perry for the support of herself and her minor children; that defendant claims title: to the property, hut without right.

Defendant answered, denying the allegations of the complaint, and for a separate defense averred that Jesse L. Perry, on the ninth day of December, 1890, being'' indebted to defendant, made, executed, and delivered to him his promissory note for two hundred and eleven dollars and twenty-one cents with interest, and in case suit was instituted to collect the same, for attorneys’ fees; that the said sum of two hundred and eleven dollars and twenty-one cents was part of the purchase money paid by said Perry for the said land, and that at the time of its execution said Perry assigned, transferred, and delivered to defendant all his interest in said land and the contract of purchase to have and to hold as security for the payment of the note; that no part of principal or interest of said note has been paid.

The case was tried without a jury, and the court found that the probate proceedings were in accordance with the allegations of the complaint.

The purchase was not made with community funds, but at the time of the purchase said Perry was married, and was residing on the premises with his family, and had filed a declaration of homestead thereon.

The court, in the probate proceedings, did set over to plaintiff all the right, title, and interest, claim and demand to said homestead which said Jesse L. Perry had at the time of his death, and had acquired by said purchase. And also found that the whole value of the estate of said Jesse L. Perry did not exceed fifteen hundred dollars.