No. 9,087.

PERSONS v. SHAEFFER ET ALS.

Department Two. Filed February 25, 1884.

THE PAYMENT OF A JUDGMENT MAY OPERATE AS AN EQUITABLE ASSIGNMENT of the same to the party making the payment, although the judgment is satisfied of record. Equity, however, will not keep such judgment alive to the prejudice of subsequent bona fide purchasers of the premises on which it was a lien, who purchased the same when it appeared of record that the lien had been discharged, and who had no knowl edge of airy equities existing in favor of the person who discharged the judgment.

APPEAL from a judgment of the superior court for Butte county, entered in favor of the plaintiff. The opinion states the facts.

J. H. McKune, for the appellant.

Gale & Jones, for the respondent.

SHARPSTEIN, J. When the defendant executed the mortgages which this action was brought to foreclose, the judgment which Wilcoxson had obtained in an action to foreclose a prior mortgage was satisfied and discharged of record, and the court finds that the mortgagees of the subsequent mortgages had no notice or knowledge of any equities then existing in favor of Catherine Matzen, who paid the sum due on the Wilcoxson judgment. In Matzen v. Shaeffer, No. 9,086, ante, p. 126, we held that as between the parties to that action the payment of the Wilcoxson judg ment by Matzen operated as an equitable assignment of it to her, and that the lien was kept alive for her protection and benefit, notwithstanding it had been satisfied and discharged of record. The reasons for so holding are stated in the opinion filed in that case, and it is unnecessary to repeat them. But at the time of the execution of the mortgages in this case, it appeared by the record that the Wilcoxson judgment had been satisfied and discharged, and it can not be held that the mortgagees took subject to the lien of that judgment. Matzen on paying it had neglected to have it assigned to her, and had suffered it to be and remain satisfied of record until after Shaeffer had executed these mortgages upon the premises.

This presents a case in which either Matzen or these mortgagees must suffer from her neglect to act promptly, as she might have done in the matter of obtaining an actual assignment of the Wilcoxson judgment, or, failing in that, having the satisfaction of record vacated. She must suffer the consequences of her own neglect. The parties who took the mortgages under such circumstances must be protected. Equity as well as law requires that they should be. Her equities at the time were latent. She might or might not avail herself of them. The lien of the Wilcoxson judgment had been discharged. Equity might under some circumstances keep the lien alive, notwithstanding such discharge. But it certainly would not keep it alive to the prejudice of a party who had purchased the premises when it appeared of record that the lien had been discharged, and who did not have any knowledge of the equities on which alone it could have been kept alive after being discharged. Judgment affirmed.

THORNTON and MYRICK, JJ., concurred.

No. 9,011.

SHAEFFER V. MATZEN ET AL.

Department Two. Filed February 25, 1884.

JUDGMENT IN AN ACTION OF EJECTMENT SHOULD BE FOR THE PLAINTIFF when the defendant has no claim to the demanded premises beyond what his naked possession gave him, and at the time of the commencement of the action the plaintiff had the legal title and was entitled to the possession.

APPEAL from a judgment of the superior court for Butte county, entered in favor of the plaintiff. This was an action of ejectment. At the trial a nousuit was granted to the defendant Matzen. The further facts appear in the opinion.

J. H. McKune, for the appellant.

Long, Lott, and Belcher, for the respondent.

By the COURT. The defendant Stillinger does not appear to have had any claim to the demanded premises beyond what his naked possession gave him; and at the time of the commencement of this action the plaintiff had the legal title, and was entitled to the possession of said premises. This is sufficiently apparent, although somewhat obscured by the finding of a great number of irrelevant facts. Judgment affirmed.

No. 8,454.

ESTATE OF LORD, Deceased.

Department Two. Filed February 26, 1884.

A HOMESTEAD FOR THE USE OF THE SURVIVING WIFE OF A DECEDENT can not be set apart under section 1465 of the code of civil procedure, so as to include a part of the separate estate of the decedent when there is common property.

A FINDING THAT CERTAIN PARCELS OF LAND OF A DECEDENT, which his widow prays may be set apart to her as a homestead, could not be divided, will not be sustained when the allegations of the petition for the homestead show the contrary.

APPEAL from an order of the superior court for Solano county, settling an account. The opinion states the facts.

Sawyer & Ball, for the appellant.

Fox & Ross, for the respondent.

MYRICK, J. The deceased died intestate, leaving a widow him surviving, who became administratrix. His mother (the appellant) is his only other heir. The widow filed a petition that a homestead be set apart to her, none having been selected, designated, or recorded in the life-time of the intestate. She petitioned the court to set apart three parcels of land, viz.: 1. Containing one hundred and fifteen and ninety-eight onehundredths acres, being farm land; 2. Containing twenty acres, being farm land; and, 3. Containing one thousand and fifty-five acres, being swamp land. Her petition set forth that the said lands were mortgaged for five thousand dollars, on which some interest had accrued; that the two first-described tracts were community property, and had a dwellinghouse and other improvements thereon; that the third-described piece of land was the separate estate of the intestate; that the entire property was not worth to exceed five thousand dollars above the mortgage; and

that it had been appraised in the inventory of the estate at nine thousand five hundred and seventy-one dollars.

The petition prayed that the two first parcels be set aside as a homestead, or in any case a partition could not be made that the whole be sold, and out of the proceeds a homestead be set aside. Appraisers were appointed by the court, who reported the value of said lands, being three several tracts as stated in the petition, at nine thousand five hundred and seventy-one dollars; that the first-described tract had a dwelling-house with other improvements; that the two parcels, firstly and secondly described, are common property, and the piece thirdly described is separate property of decedent; that the premises could not be divided without material injury, and that the whole is incumbered with a mortgage for five thousand dollars and some interest. Thereupon the widow filed another petition, setting forth the matters contained in her first petition, the fact of the appraisal, and that the property could not be divided without material injury, and prayed for a sale of the property, and that out of the proceeds she be allowed five thousand dollars in lieu of a homestead.

The court fixed a day for the hearing of the petition, and after hearing evidence, found the facts as above, among others, that the two first-described parcels were community property, and the other separate property of the deceased, and ordered the property to be sold in one parcel subject to the mortgage, and that out of the proceeds, five thousand dollars, if so much should result, be set apart and designated as a homestead for the said widow, and that she retain the same for that purpose as her own property. A sale was made for five thousand four hundred and forty-four dollars and twenty cents, cash, subject to the mortgage; and the sale was confirmed and a conveyance made. The administratrix filed her account, in which she charged herself with four hundred and forty-four dollars and twenty cents of the proceeds of said sale, and omitted to charge herself with the five thousand dollars. The appellant contested the settlement of the account; and her objections being overruled, this appeal was prosecuted.

We have given the above full statement of facts in order to more clearly state the law applicable thereto. The statute is clear that if a homestead has been declared in the life-time of the deceased, and if it be appraised at more than five thousand dollars, and can not be divided, the whole may be sold, and five thousand dollars of the proceeds be set apart in lieu of the homestead claim. Evidently, the widow supposed the same course could be taken when no homestead had been declared, upon her petition for what is called a probate homestead; and the court below seems to have agreed with her. It is not necessary, in this case, to decide that question, and we omit to do so.

The proceedings in this case, from and after the report of the appraisers, were irregular, and we very much doubt if any title passed to the purchasers. Referring to section 1465, code of civil procedure, we find the direction, if no homestead has been selected, designated and recorded, the court must select, designate, and set apart, and cause to be recorded, a homestead, for the use of the surviving husband or wife or children (as the case may be) out of the common property, or, if there be no common property, then out of the real estate (separate property) belonging to the decedent. The selection must be made from the common property, if there be any; it can be made from the separate prop

erty only in case there be no common property. The statute in this regard is clear and explicit, and admits of no question. The petition of the widow stated that the two first-described parcels of land were common property, and that the third was the separate property of the decedent, and this is shown in all the subsequent proceedings. It appeared, then, on the face of the petition, and by the subsequent proceedings, that the court had no jurisdiction to set apart a homestead out of, or to include within a homestead, a third parcel. If the court could not set apart the third parcel, it certainly could not sell it for homestead purposes. This is clear to a demonstration. The sale was not made to pay debts; its object is distinctly stated.

Again: the petition states that the real estate consists of three parcels, giving the acreage of each, the two first being farming lands, and having on one of them the dwelling-house and improvements, and the third being swamp land, and the appraisers so report, and the court so finds; yet the court finds and adjudges that these separate parcels could not be divided. Were it not for the allegation of the petition and the statement in the findings, we might be bound by the findings of the court that they could not be divided; but with the allegation of the petitions. and the facts as found, we can not see how the conclusion at which the court arrived could have been supported by the evidence. It seems to us that the only bond between the three parcels is the mortgage over all, which is not a controlling element in making a homestead selection.

A proper course for the court below to have taken would have been to proceed on the first petition to set apart a homestead out of or embracing the common property, which would have been subject to the mortgage; and the widow would then have been in condition to ask a sale of the balance of the property and the application of the proceeds to the payment of the mortgage, under section 1475, code of civil procedure, or in case of foreclosure, to ask that the mortgaged property not set apart be first sold, and the proceeds applied, leaving the homestead liable for the balance only.

We suggest (and this is a suggestion merely) that, as the estate is still in process of administration, the court below may save the rights of the parties, including the purchasers, by setting all proceedings subsequent to the first petition, and let the money paid by the purchasers be returned, and then proceed to set aside a homestead according to law.

The proceedings in this case were taken under section 1465, code of civil procedure, as amended in 1880. This section received a legislative construction in harmony with the views we have above expressed, by the amendment of section 1468, approved February 19, 1881, wherein it is provided, that where separate property is set apart, it is set apart for a limited period only, the title vesting in the heirs subject to the order setting apart.

The order is reversed, and the cause is remanded for proceedings not inconsistent with this opinion.

SHARPSTEIN and THORNTON, JJ., concurred.

No. 9,252.

KELLEY V. FITZELL.

Department Two. Filed February 26, 1884.

A FINDING WILL NOT BE DISTURBED WHEN THE EVIDENCE IS CONFLICTING. REFUSAL OF THE COURT TO ALLOW A WITNESS TO TESTIFY TO CERTAIN DECLARATIONS and conversations made by and between the parties to the action, although erroneous, will not warrant a reversal when the defeated party was not prejudiced thereby.

APPEAL from a judgment of the superior court for Lassen county, entered in favor of the defendant, and from an order denying the plaintiff a new trial. The opinion states the facts.

C. G. Kelley, for the appellant.

C. McClaskey, for the respondent.

SHARPSTEIN, J. The plaintiff gave to the defendant an agreement in writing, of which the following is a copy:

"I hereby agree that H. G. Fitzell may take a fourth or fifth interest in the ditch right he has this day conveyed to me, by being at his proportion of the expense on said ditch, down to and through his lands. "June 28, 1880. G. F. KELLEY."

On behalf of plaintiff, it is contended that this was simply a proposition which respondent never accepted. But the evidence on this point is conflicting. That introduced by respondent tended to prove that he did accept it, and aided in the construction of the ditch. Under these circumstances, we can not disturb the finding of the court below on that question.

On the trial the wife of plaintiff was called by him as a witness and asked to state a conversation between her husband and defendant-to state all of the conversation. Defendant's counsel objected to her stating what plaintiff said, as not the best evidence. The court sustained the objection, and plaintiff excepted. The court then told the witness. to state only what respondent said to plaintiff, whereupon the witness said: "I heard the defendant [Mr. Fitzell] tell Mr. Kelley [plaintiff] that he would not take any interest in the ditch; that he had not got the money to pay out on it; but that he would work on the ditch for Mr. Kelley [plaintiff ], and take his pay in water; that was about the middle of October, 1880." While we do not doubt that the court erred in sustaining the above-mentioned objection, we can not see how the plaintiff could be prejudiced by it. His witness testified to a declaration or avowal of defendant that he would not take any interest in the ditch, and that was all plaintiff was trying to prove. Nothing which the plaintiff could have said at the time would add any force or weight to this evidence. The declaration or avowal of defendant, as testified to, was clear and explicit. It could not be made more so by anything which the plaintiff could have said.

Judgment and order affirmed.

MYRICK and THORNTON, JJ., concurred.