Hoppe v. Hoppe
Before: Fitzgerald, Garoutte, Harrison, Haven, McFarland
Synopsis
Appeal from a judgment of the Superior Court of Sacramento County.
The facts are stated in the opinion of the court.
The proper construction of the order setting apart the homestead is, that it was set apart for the use of the family, as the law directs the court to so set it apart. (Sheehy v. Miles, 93 Cal. 295.) It is the law, and not the phraseology of the order of the court, which directs the course of title, and vests it in the parties entitled to it. (Rich v. Tubbs, 41 Cal. 34; Watson v. His Creditors, 58 Cal. 556; Tyrrell v. Baldwin, 78 Cal. 470-76; Herrold v. Reen, 58 Cal. 443; Estate of James, 23 Cal. 415; Estate of Burnes, 54 Cal. 223; Estate of Croghan, 92 Cal. 370.) If the form of the order requires it to be construed as vesting, if valid, the title in the widow alone, the order is coram non judice, and void. (Cohen v. Barrett, 5 Cal. 210; Meyers v. Kohlman, 8 Cal. 44; McDonald v. Katz, 31 Cal. 167; Harper v. Frelon, 6 Cal. 76; Hanscom v. Tower, 17 Cal. 519; Gilmer v. Lime Point, 19 Cal. 47; Dorsey v. Barry, 24 Cal. 449; Central Pac. R. R. Co. v. Pearson, 35 Cali 247; Keema v. Dougherty, 51 Cal. 3; Iburg v. Fitch, 57 Cal. 189; California Furniture Co. v. Halsey, 54 Cal. 315; Smith v. Westerfield, 88 Cal. 379.) If the legal title vested in the widow, then one-half thereof vested in her as a trustee for the minor children. (Civ. Code, sec. 2224; Salmon v. Symonds, 30 Cal. 301.)
The order setting apart the homestead relieved the property from administration, but did not direct the course of title. (Estate of Orr, 29 Cal. 102; Rich v. Tubbs, 41 Cal. 34; Schadt v. Heppe, 45 Cal. 434; Estate of Burton, 63 Cal. 36; Watson v. His Creditors, 58 Cal. 556; Herrold v. Reen, 58 Cal. 443; Estate of James, 23 Cal. 415; Estate of Burns, 54 Cal. 223; Estate of Croghan, 92 Cal. 370; Sheehy v. Miles, 93 Cal. 295.) After being set apart the title vested in the widow and minor children, one-half to the former and the other half to the minors, in equal shares. (Code Civ. Proc., sec. 1468.) A probate homestead is an entirety, and cannot be destroyed by the act of one of the parties interested therein. (Waples on Homestead and Exemption, 644; Rhorer v. Brockhage, 86 Mo. 544; Rogers v. Mayes, 84 Mo. 520; Whittle v. Sam-uels, 54 Ga. 548; Showers v. Robinson, 43 Mich. 512; Roberts v. Ware, 80 Mo. 363; Kochling v. Daniel, 82 Mo. 54; Miller v. Marckle, 27 Ill. 405; Watters v. People, 21 Ill. 178; Johnston y. Turner-, 29 Ark. 280; Cañóle v. Hurt, 78 Mo. 649.) If the alleged mortgage creates any lien at all on the interest of Julia Hoppe (but wo submit it does not), it cannot be enforced until the youngest child attains its majority. (Roberts y. Ware, 80 Mo. 363.) The homestead cannot be partitioned. (Rhorer v. Brock-hage, 86 Mo. 544.) The mortgage by the widow is void. {Moses v. McClain, 82 Ala. 370, and cases therc-in cited; McIntosh v. Parker, 82 Ala. 238; Shorman y. Dakin, 47 Ark. 351; Merriam v. Boston etc. R. R. Co., 117 Mass. 241; Pells y. Webquish, 129 Mass. 469.)
Harrison, J. The first of these actions, Herman W. Hoppe et al. v. Julia Hoppe and W. A. Fountain, was to [98]obtain a partition between the plaintiffs and Julia Hoppe of the lands described in the complaint, Fountain being a party defendant because he claimed to be a .mortgagee of the whole of the premises under a mortgage executed by the defendant, Julia Hoppe.
The second of the actions was afterwards brought by Fountain against Julia Hoppe to foreclose said mortgage, and the plaintiffs in the first action intervened in the' second, and, by order of the court, the two actions were consolidated.
Fountain demurred to the complaint in partition, and also to the complaint in intervention, and to the answer of Julia Hoppe in the foreclosure case, and these demurrers were each sustained, and judgment dismissing the action for partition and tbe complaint in intervention and foreclosing the mortgage was entered. The inter-venors and Julia Hoppe separately appeal from the judgment upon the judgment-roll, and a bill of exceptions setting out the order consolidating the actions and exceptions to the rulings upon demurrer. The facts set out in the several pleadings demurred to are substantially the same, and show the following facts.
F. W. Hoppe died August 10,1881, leaving the appellant, Julia, his widow, and nine children, of whom these intervenors were minors, the others being of full age. At the time of his death he was possessed of a tract of land upon which he and his family resided, containing about one hundred and sixty acres, situated in Sacramento county, the same being community property. The widow was appointed administratrix, and on October 1, 1891, filed an inventory and appraisement of the estate, wherein said land was appraised at four thousand dollars. She also filed a petition praying for an order setting aside said land, with the dwelling-house thereon, “for the use of the family of deceased,” and alleged that the family consisted of herself and nine children, all of whom were named therein, but their ages were not given, nor was it alleged that any of them were minors. Upon this petition, on the seventh day of October, 1881, [99]the court made an order, of which the following is a copy:
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