The Placer herald., 1855-09-29
Points decided by the Supreme Court.

THE QUESTION OF ALLOWING IMPROVEMENTS.
Ford VS.. Hoiion.-ErrOr will not be presumed
but must be affirmatively shown and all intend
ments are in favor OF the regularity of the judg-
ment below.
There was no error in refusing to allow the de-
fendant to prove the value of improvements made
by the defendants. At common law no such al
lOwance was ever made, and our practice act only
permits it to the extent of being used as sctoff
to "the damages for Withholding the property re-
covered" In this case no proof was introduced
TO show the damages. or at least no damages are
found by the jury, and there is nothing against
which the value of the improvements can be made
TO any purpose.
VALIDITY OF TAX TITLES.
The Court re-affirms its decision in the case of
Norris .. Peterson IL Russell, decided at the July
term. 1855, that to sustain tax title every pre-
requisite TO the exercise of the power of sale by
the officer. must he shown to have been accom-
plished. The Court remarked that, this oc
curred before the regent statute. who makes tax
deeds prima facie evidence of title.
JUDGES RECOLLECTION OF WITNESS TESTIMONY
NOT BINDING OS JrRY.
Reynolds v. JQyd0n-On the trial of this
cause in the Court below the counsel for the
plantih IL summing up the facts before the Jury,
stated that one OF the witnesses had depOsed to
certain facts, which statement was contraicte
by the defendants counsel. who offered to recall
The witness. but the Court held that the witness
differed in opinion as to what the witness did say
they were compelled to take the recollection of
the Court,
This instruction was erroneous. 1t is the prcu-
liar province Of the Jury to ascertain the facts
from the testimony and to render verdict upon
those facts ia conform ty with the law as laid
down by the Courts. While, under our system,
the Court is p rmtted TO state the test st,mony, it
was Eeyer intended to substitute the recollection
of the Judge for that Of the Jury The opinion
cF fh.,f f'nIivt tl,
tainly entitled to consideration but the Jury who
are. after all the Judges Of this fact. should take
their Impressions from the witness. and ought not
20 forego their opinions because different state
menf or Interpretation is made hy the Court.
Judgment reversed, and cause rcmande1 with
costs.
THE DOCTRINE OF FnoSEsrEAD--MoprrIcArlo
Dauis & Uoif v. .Fleishacaer-This was a mo-
zion for writ of assistance to put in of
the land, purchaser under decree OF foreclosure
OF mortgage given to secure the payment of the
purchase money. 1t is sisted on the ground that
the land is a hom stead and the wife did not ION
IN the mortgage The mortgage is upon the whole
land to secure the purchase money Tor two tn rds
oil 1t un liHsded, the mortgagcr being at the time
the owner Of one undvd, Il one tn. ri. The Home
stead Act requires the honest al to consist of
quantity of land with the dwelling house etc
not exceeding in value Sj0sG, To b. selected bv
the owner thereof, etc. In this case the defendant
was the owner Of an undivided One-thrd lie
held as Joint tenant-htving jointly purchased
with two others. 1t required the title OF the three
to constitute an ownership of the land. and there
was no part Of it which he had the power to set
apart as his own, as to constitute a homestead
The right ot each of the other iupt tenants WAS
as great to the whole as his owii right. The stat
ute did not contemplate that hom stead, should
be carved out of land held in jont tenancy. II
tenancy in common. because il has not provided
any mode for their separation and asccrtainmrnt.
All of the questions Of excess If value. apprlis,-
ment and division between debtor and creditor
lHould arise only to give compcXity to IA state of
facts for which no provision OF the statute seems
70 be ad quate, and would nrcessar " force into
litigation, at least into care and trouble the in
nocent tenants. who would thus be subjected to
annoyance without any fault OF Their Own. II the
policy OF the law was to extend to such CASES it
would he more clear and eXplc t in its dcclaIa-
tiOn', so that Joint own rs of land woul,l at Last
be made awarc of additional cUutll genCy al
:ached t. ttr form Of their title
Judgment affirmed.
IMPORTANT - THE HUSBAND CANNOT DEVISE MORE
THAN HALF THE COMMON PROPERTY
hGchei Beard V. Nm. Anor.--1hc sta&utc of
this State defining the ri ghts of husband and wife
passed April II, 1850, provides that "al prop, rty
acquired by eth, husband or wife. except such
may be acquired by gilt. bcqu,st. dcyisr or de-
scent, shall be common prop, rly." IL is further
crowded that the husband Shall have the entire
control OF the common prop rty, witt, absolute
GOwer to dispose of it: and upon the dissolution
of the community by death of eth the husband
wife. half of the common property shall
20 to the survivor. etc.
The first question raised is as to the power of
tie husband to convey the common property by
dayisc OF will and thus defeat the r. gls OF the
hurviving wife. This. we have no hesitation in
saying cannot be done. Our statute has done
away with the common law right of dover and
substituted in place half int, r.st in the common
property. This liberal provision was intended for
the benefit of the wife and the intention of SO hu
name and bencicent law should not be defeated
by adopting rule of construction which would
leave itbe future maintenance OF herself and fam
lily entirely at the caprice of the husband
The words, with absolute power to dispose Of"
aught not to be extended to disposition by de-
wise. The husband and wife during covcriure are
jointly seized of the prop rty. with one-half inter
est remaining over to the wife, subject only to the
husband disposal during their joint lives This
is present, definite and certain int, rest. which
becomes absolute at his death. 50 that "A Gispos-
ton Iy devise, which can only attach after the
ltath of the testator. cannot affect it; for such
conveyance can only operate after death upon the
very happening of which the law of this State de
lermines the estate and the widow becomes seized
of one-half of the property.
The appellant relies on the words of the stas
ate. ''shall reside and acquire prop rty.'' and
seems to think that this provision was intended to
give greater privileges to those wives actually re-
siding in the Stat. than conferred on those
not actually residents. In hashar v. ashaw,
l3 Cal. Rcp.] held that the dom ell of the hus,
band was the dom Gil of the wife in contcmpla-
ton of law and THAT it was not necessary that
she should be an actual resident in the State Tn
reasoning of that case will apply with quail force
to the present and it can hardly he supposed that
the Legislature intended to deprive the wife of all
right to the husbands estate as penalty for not
residing in the State. which would be the neccs-
sary Jesuit if the appellants construction was
CORRECT.
But it is urged that by accepting the legacy,
the plaintiff is estoppcd from setting upa claim to
cne-half of the estate. 1t is a fam liar prlnc pie
that an heir cannot take lcgatee and aft, r
wards dispute the validity of the will, hut this
principle does not apply in the present case. The