Dunn v. Tozer.

charge of an agent, for sale, who advertised and sought to sell it. The efforts were continued until the sale by the sheriff. Dunn and his wife both declared, at different times, that they did not intend to and would not remain there, and Dunn stated that his object in selling was to obtain money to buy stock for his rancho. During this time, Dunn and his family resided upon a rancho in Petaluma, but had an agent and attorney here. The above facts and circumstances must necessarily defeat the presumption arising from the residence of Dunn and his family upon the premises.

BURNETT, J., delivered the opinion of the Court-TERRY, C. J., concurring.

The plaintiff claimed the lots in dispute as a homestead. They were sold by the defendant White, as sheriff of Sacramento county, to defendant Tozer, under an execution against the plaintiff, and a certificate of sale executed by the sheriff. This was a bill to set aside the certificate, and to restrain the sheriff from executing a deed to Tozer. The Court below dismissed the plaintiff's bill, and the plaintiff appealed.

It is objected in this Court, for the first time, by the counsel of defendant Tozer, that the wife of plaintiff was not joined with him in the suit. This defect was apparent upon the face of the complaint, and the defendant might have demurred. The counsel of plaintiff insists that the objection was waived by a failure to demur.

It has been repeatedly decided by this Court, that where a defect of parties is apparent upon the face of the complaint, the objection must be taken by demurrer, or the same will be waived. (Warner v. Wilson, 4 Cal. Rep., 252; Andrews v. Mokelumne Hill Company, 7 Cal. Rep., 330; Alvarez v. Brannan, Ib., 503.)

It is expressly provided, in section forty-five of the Code, that an objection of this character, if apparent upon the face of the complaint, is waived by a failure to demur.

Having disposed of this point, we come to the merits of the case. It appears that the plaintiff purchased the property in the month of April, 1855, with the intention of making it a home for his family; that he moved to and resided with his family upon the premises for about thirteen months. About the time the plaintiff purchased the premises in controversy, he owned a farm, which he sold; and with the proceeds of the sale, the witness thought he purchased the lots and improvements, which are of the value of $2,500.

The fact of the dedication of the premises as a homestead seems to have been satisfactorily established. It was clearly proved that the plaintiff declared, at the time he was purchasing the property, and afterwards, that he designed it for a home

Dunn v. Tozer.

stead; and he resided with his family upon the place for some thirteen months, when he left and went to Petaluma to occupy rented land for the purpose of carrying on a dairy. It was shown that the plaintiff owned no other real estate.

For the purpose of rebutting this proof, and for the further purpose of proving an abandonment of the homestead, the defendants proved that plaintiff, in January or February, 1856, employed J. R. Adkins to sell the property-the plaintiff stating that he must sell for cash, as he intended to purchase stock for his rancho with the proceeds. Shortly after the agent was employed he visited the premises, and Mrs. Dunn stated that she was fully satisfied with her husband's purpose to sell the placethat she could not live there, and would never return to it if she could get away. The plaintiff, likewise, told the agent that the family could not live there, as their animals had been poisoned, and they desired a more active life. The property was advertised and put up at auction, and bid in by some one for the plaintiff. The plaintiff and family left in May, 1856, and the premises were sold by the sheriff on September 23d, 1856. The defendants also proved, by a witness to whom the plaintiff had rented the property, that the plaintiff declared, about the time. he left for Petaluma, he wished to sell the premises because he thought them bewitched. But we can not see, in all this, any evidence either that the plaintiff and wife never intended to dedicate the premises as a homestead, or that they intended to abandon them after they were so dedicated. The plaintiff sold his farm about the time he purchased the premises, and afterwards owned no other place he could call his homestead; he rented out the property and left an agent to collect the rents, and came several times to see about it. The tenant, having failed to pay the rent, and refusing to give up the property, was sued by the plaintiff, and expelled by the process of the law. The fact that both husband and wife were anxious and willing to sell the place, for the reasons stated, and that repeated efforts were made by the husband to accomplish this purpose, (which efforts failed because a satisfactory price could not be had,) does not show any intention to abandon, but only to sell, their homestead. All the conduct of husband and wife was strictly conNo deed was offered to be sistent with their homestead right. made by the husband alone for the property.

Besides this view of the case, it seems clear, from the testimony, that plaintiff and his wife had no wish to sell the premises until some nine months after they were dedicated as a homestead. They had become joint owners of the property, with the right of survivorship; and their declarations and removal from the premises could not constitute an abandonment. The declarations of the husband could not bind the wife; and the act of going with her husband to reside upon another place could in no

Bleven v. Freer.

way affect her right. There is only one way in which the right of the wife to the homestead can be extinguished, and that is by a joint deed, executed by both husband and wife, and properly acknowledged by the wife. (Dorsey v. McFarland, 7 Cal., 342; and the cases there cited.)

The right of homestead having once attached, and not having been alienated, the deed from the sheriff would be a cloud upon the title, and prevent the free alienation of the property by husband and wife. (Dorsey v. McFarland.)

Under the view we have taken, the decree of the District Court must be reversed, and the cause remanded, with directions to enter a decree for plaintiff.

BLEVEN v. FREER (SHERIFF) et al.

The owner of property attached or levied upon as the property of another, is not conclusively estopped from showing title in himself, because he has given an accountable receipt for its delivery to the officer, although the receipt admits that the property is attached or levied upon as the property of the debtor, if he makes known to the officer his claim at or before the time the receipt is given. But if he fails to make his claim known, and thus influences the conduct of the officer, he is estopped from afterwards asserting it; provided, the facts and circumstances relating to his claim were then known to him.

The admission that the property is attached or levied upon as the property of the debtor, and the promise of the owner to deliver it to the officer, constitute prima facie evidence of ownership in the debtor; and, unless overcome by proof on the part of the claimant, must be decisive against him.

To overcome this prima facie ownership in the debtor, the receiptor must prove two things: first, that he claimed the property; second, that it was in fact his own. A judgment will stand though the wrong reason be given for it.

It is sufficient, to sustain the decision of the Court below, that there is one conclusive ground upon which it can rest.

APPEAL from the District Court of the Tenth Judicial District, County of Yuba.

This was an action to recover damages alleged to have been sustained by reason of the wrongful seizure and sale of property by the defendant Freer, as sheriff, under an attachment, and subsequently an execution, in favor of the defendant Van Norden, and against George W. Buckley.

At the time the attachment was levied, the property was in the possession of the plaintiff, who executed a receipt to the sheriff for the delivery of the property, as follows:

"Whereas, Peter Freer, sheriff of Butte county, State of California, has attached, seized, and taken into his possession, at the suit of Robert Van Norden v. G. W. Buckley et al., in the Dis

Bleven v. Freer.

trict Court of the Ninth Judicial District, and county and State aforesaid, the following described property, the same being taken as the property of the said G. W. Buckley, at the time of the said seizure and attachment, and at the time of the delivery of said property by the said sheriff to the undersigned, viz.: one dark bay horse, branded on the near shoulder with the letter 'R;' also, one bay horse, branded T B B,' on the near thigh; also, one bay horse, with the letters W R,' branded on the near shoulder, turned upside down; also, one sorrel mare, branded with C R,' on the near shoulder; also, two sets of harness (draught;) also, one heavy draught wagon, with iron axle-tree. The said property is received by the undersigned from said sheriff, at the risk of the undersigned, and to be delivered on demand, or per order, to the said sheriff, in as good condition and care as at present; and in default thereof, to be responsible for the same. And further, I do hereby acknowledge that said property is in fine condition and trim.

"Given under my hand and seal, this twentieth day of May, A. D. 1854.

"Signed,

BENJ. B. BLEVEN."

Judgment was afterwards had by Van Norden against Buckley, execution issued, the property delivered by Bleven to the sheriff, and by the latter sold under the execution. Bleven then brought his action against the sheriff and Van Norden, claiming the property as his own, under a purchase from Buckley hefore The case was tried before the the levy of the attachment. Court, sitting as a jury. The defendants had judgment. Plaintiff moved for a new trial, which was denied by the Court, and plaintiff appealed.

R. S. Mesick for Appellant.

The facts and circumstances of this case are explained by the pleadings and the receipt, and show simply that the receiptor was willing to hold the property according to the terms of the receipt, rather than lose its possession and use, for the time being, until he could assert his rights in the premises. The receipt, then, is fully explained, and ought not to affect the real title of plaintiff. Nor can it operate as an estoppel beyond the time of its re-delivery to plaintiff, and the return of the property to the

officer.

Such has been the conclusion of Courts in similar cases.

In the case of Boorsely v. Hamilton, 15 Pick., 40, involving this point, the Court says: "If the promise had been complied with, (the goods returned,) had the defendant delivered over the goods agreeably to his contract, he might then have brought his action of replevin, trespass, or trover, to try his right of property. He would no longer be estopped by his contract, and the implied

Bleven". Freer.

admissions contained in it, and upon proving title in himself, as he has proved it in the present action, he would have recovered the goods or their value." Citing Johns v. Church, 12 Pick., 562.

The case of Robinson v. Mansfield, 13 Pick. R., 139, is in point, and shows that "if goods attached on a suit against a person to whom they do not belong, are delivered to the owner, upon his written receipt and promise to re-deliver them to the officer, on demand, the owner may nevertheless maintain trespass against the officer for the taking, after the receipt is returned and the property re-delivered to the officer."

The case of Johns v. Church, 12 Pick. R., 557, is exactly in point, and there the language of the Court is as follows: "It is said that the plaintiff is estopped by the accountable receipt which he gave to the defendant, which has been delivered up, as having accomplished its object. We think not, and for the reason suggested, viz.: that the contract has been performed, and that the estoppel should not extend beyond the terms and duration of the contract, or accountable receipt. The plaintiff agreed to hold the property, as it was claimed by the defendant under his attachment, as the property of Sperry, until it should be delivered. If the defendant had demanded the property, and the plaintiff had set up, in defence, that it belonged to himself, and not to Sperry, he would not have been permitted to avail himself of such defence, contrary to his engagement to keep the goods, until the defendant should call for them as the property of Sperry. But the plaintiff has delivered the property to the defendant in full discharge and performance of his contract, and we think that the officer then held the property as when he originally attached it." 2 Shepley, 414; 8 Greenleaf, 122.

The case of Dezell v. Odell, in 3 Hill, 216, its facts being considered, is not hostile to our position, and even there the dissenting opinion of Judge Bronson seems the better one.

Swezy & Field for Respondents.

By the receipt given in this case, the plaintiff, B. B. Bleven, acknowledges the receipt of the property from the sheriff as the property of the said G. W. Buckley, and agrees to deliver the same to the sheriff, or in default thereof to be responsible for the same. This acknowledgment and undertaking on the part of Bleven was made with a full knowledge of the fact that the defendant, Freer, acting as sheriff, had taken the property upon an attachment against Buckley, as the property of Buckley. This knowledge can not be denied, as the same is set forth and recited in his receipt. Again, the complaint avèrs that this property was sold by the sheriff upon the execution in the suit wherein said property was seized and taken upon the attachment; and it was admitted on the trial that the property was delivered by Bleven to the sheriff upon that receipt, and the