In re Allen

HAYNE, C. Appeal from a judgment setting aside a homestead under the insolvent law. The homestead set apart consisted of lots 4 and 5, in block 39, of the town of Chico. These two lots adjoined each other. Upon lot 5 was the dwelling-house, and upon lot 4 were certain out-buildings and a blacksmith-shop. The two lots and buildings were together under the value of five thousand dollars. It is conceded that the order was proper as to lot 5, but it is argued that lot 4 was used exclusively for business purposes, and that, therefore, there could not be an actual residence upon it. It appears, however, that a part, at least, of lot 4 was used for family purposes. The court finds that “the well, cow-house, chicken-house, wood-shed, and other out-buildings necessary and convenient for the use of said premises, are situate upon lot 4.” This we think is not contradictory of the other find[835]ings, when all are taken together. It appears from the evidence that the cow-shed was built in 1884-85. “Before it was built there was a wood-house there. The barn now is used for the same purpose that the old one was; wood-house, chicken-house, and cow-shed combined.”

The homestead is not restricted to the ground actually covered by the dwelling-house. It includes the additional ground which is necessary or convenient for family use. In this regard Sanderson, J., delivering the opinion in Gregg v. Bostwick, 33 Cal. 227, 91 Am. Dec. 637, said: “It represents the dwelling-house at which the family resides, with the usual and customary appurtenances, including out-buildings of every kind necessary or convenient for family use, and lands used for the purposes thereof. If situated in the country it may include a garden or farm. If situated in town it may include one or more lots or one or more blocks. In either case it is unlimited by extent merely.” The rule laid down in this case has been frequently approved and followed. And in pursuance of it the court held, in Englebrecht v. Shade, 47 Cal. 627, that the use of an adjoining lot “for the purpose of drying clothes, and as a means of access to the street,” was sufficient to support a declaration of homestead including it. So, in Skinner v. Hall, 69 Cal. 195, 10 Pac. 406, it was held that a portion of a lot used as a chicken-yard was properly included in the homestead. The above-mentioned portion of lot 4 certainly comes within the rule of these cases. It must be presumed that the legislature intended that the family should have water to drink, and wood to cook with. And inasmuch as a cow and a certain number of chickens are exempt from execution, it is reasonable to suppose that it was the intention that there should be a place to keep them. A portion of lot 4, therefore, was clearly properly treated as part of the homestead. As to the remainder of this lot there is more doubt. The facts concerning it are as follows: On one end of the lot is a two-story frame building eighty by forty feet, which is equal to about half of the area of the lot. The lower part of this building is divided into two portions. The front portion was used by the insolvent as a blacksmith-shop. The rear portion was occupied by one Canfield as a wagon-shop. The insolvent and Canfield seem to have been in some way interested together in these undertakings, tor the court