Fealey v. Fealey
Before: Fleet, Harrison, Haven
Synopsis
Appeal from a judgment of the Superior Court of Napa County.
The facts are stated in the opinion of the court.
The court had jurisdiction in this case, and here the court found the property to be community property, which is conclusive of its status. (Kearney v. Kearney, 72 Cal. 591; Griffith’s Estate, 84 Cal. 113.) By the force of the order setting aside the homestead the title thereto is as against the plaintiff in the defendant. (Code Civ. Proc., sec. 1908; JacJcson v. Lodge, 36 Cal. 28; Estate of Moore, 96 Cal. 522.) Plaintiff's complaint does not allege or even suggest that any fraud or device was resorted to by defendant, or that defendant by any act prevented plaintiff from making proofs relative to the character of the property set aside as a homestead; on the contrary, it affirmatively appears that no such fraud or device was resorted to by defendant. The fact that defendant willfully or otherwise testified falsely as to the character of said property is not such fraud as a court of equity will relieve against. (United States v. Throck-morton, 98 U. S. 61; Gruwell v. Seybolt, 82 Cal. 8; Pico v. Cohn, 91 Cal. 129; 25 Am. St. Eep. 159.)
The lower court had no power or jurisdiction to set apart as a homestead to defendant separate property of deceased, while there was community property belonging to the estate out of which a homestead could have been selected. (Code Civ. Proc., secs. 1465, 1468; Lord v. Lord, 65 Cal. 84.) Neither did the court have jurisdiction to set aside to the defendant, as a homestead, the separate property of deceased, absolutely; it only had jurisdiction to set it aside for a limited period, which must be designated in the order. (In re Noah’s Estate, 73 Cal. 583; 2 Am. St. Rep. 829; Gruwell v. Sey-bolt, 82 Cal. 7; In re Lahiff, 86 Cal. 153; In re Schmidt’s Estate, 94 Cal. 334.) The complaint in this case charges the concealment and suppression of material facts by the defendant, of false and perjured testimony given by her in the procurement of the order setting apart to her the premises as a homestead, with the intent to deceive and mislead the court, to the prejudice of the plaintiff, and that such concealment, suppression, false and perjured testimony had the intended effect to the injury of plaintiff. This certainly constituted fraud as defined by the Civil Code, and in the following authorities: Pomeroy’s Equity Jurisprudence, secs. 901, 919, 1364; Estate of Hudson, 63 Cal. 454; Dean v. Superior Court, 63 Cal. 474. Courts of equity have jurisdiction to vacate and set aside judgments obtained by the use of that fraud and deceit which imposes upon the jurisdiction of the court. (Carpentier v. Hart, 5 Cal. 406; Estate of Hudson, 63 Cal. 454; Dean v. Superior Court, 63 Cal. 473; Bergin v. Haight, 99 Cal. 52; Johnson v. Waters, 111 U. S. 640; Griffith v. Godey, 113 U. S. 93; Haven v. Haws, 63 Cal. 452; Story’s Equity Jurisprudence, secs. 1570, 1573; Pomeroy’s Equity Jurisprudence, secs. 916, 919; Pome-roy’s Remedies and Remedial Rights, sec. 267; Pico v. Cohn, 91 .Cal. 133; 25 Am. St. Rep. 159; Wickersham v. Comer ford, 96 Cal. 433.)
De Haven, J. The defendant is the widow of William Fealey, deceased, and this action is brought for the purpose of annulling an order of the superior court of Napa county setting apart to her a homestead out of the estate of said deceased. The complaint alleges that the property so set apart was the separate property of the deceased, and that the defendant here, with knowledge of this fact and for the purpose of deceiving the court in which the administration proceedings were pending, filed a petition in which she falsely alleged that such property was community property, and asked that the same be set apart to her absolutely as a homestead; and that upon the hearing of the application she was a witness, and testified that the statement in her petition in relation to the character or title of such property was true. The complaint further alleges that this testimony was willfully false, and was given by the defendant for the purpose of deceiving the court; and that by reason thereof the court was in fact misled and deceived, and induced to make the order granting the prayer of defendant’s petition, and to set apart to her the land therein described as a homestead for her sole use and benefit. The order is set out in the complaint, and it appears from its recitals that the court found “ from the papers on file in the said matter and other evidence [358]introduced ” that the property so set apart was community property.
The complaint also shows that the deceased died intestate, and that the plaintiff, who is his mother, and the defendant are his only heirs at law; and it is further shown that prior to the making of the order sought to be annulled the plaintiff was adjudged an incompetent person, and a general guardian — the same person who brings the present action in her behalf— had been appointed to manage her estate. The complaint alleges that this guardian had actual notice of the proceeding upon the part of the defendant to obtain the order setting apart the homestead, and that he consulted certain lawyers in relation to the rights of plaintiff, and upon the facts which he laid before them was by them advised that the defendant was entitled to the order asked for in her petition, and that it would subject the plaintiff to useless expense to contest the right of defendant to have the land therein described set apart to her absolutely; but in this connection the complaint alleges that said guardian did not learn the true facts concerning the title to such land until after the entry of the order here assailed. The complaint also contains an averment that there was community property belonging to the estate of the deceased Fealey out of which a homestead could have been set apart, and that the existence of this property was fraudulently concealed by the defendant. This latter averment adds no strength to the complaint, and need not be further considered by us.
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