The herald., 1893-02-09
THE SCALES NICELY BALANCED,
Judge Shaw's Opinion for Both
Defendant and Plaintiff.
Old Mr.. Jamison Charges His Son
With Harsh Treatment.
The BalIona Railroad Csse-The United
States Court-Pompey Smith
Found Guilty - New
euits-Notess


Judge Shaw yesterday rendered the
following opinion in the case of NJ. Muir
name and wife vs. ]. K. Norman:
"The PLAINTIFF sue the defendant to
recover possession Of lot ON San Fer
nando street in the city of Los Angeles.
The evidence shows that the plaintiffs
are husband and wife; that the plain
tiff Martin obtained title to the lot on
May Z, 1888, by deed from one Marquet !;
that plaintiffs lived in cottage situated
on the rear portion of the lot continu-
ously from that date until 1892; that on
October 10, 1889, the plaintiff Jane
Murnane, duly executed, acknowledged
and caused to be recorded declaration
of homestead on the lot; that on April
8, 1892, the plaintiff Martin executed
and acknowledged general power of at
torney to M. V. Biscailuz in the usual
form, and on May 7. 1892, the plaintiff
Jane executed and acknowledged Sim
on May 10, 1892, the plaintiff, by deed
purporting to be- executed by plaintiffs.
by M. V. Biscsiluz as their attorney in
fact, conveyed the lot to the defendant.
The deed recites the payment of con-
sideration of $1,000 in money, and it was
not signed nor acknowledged by either
of the plaintiffs in person. The plain
tiffs claim that conveyance of home
stead must be made by the husband
and wife in person, and cannot be made
through the medium OF an attorney in
fact.
The sections of the civil code in force
at the time of the execution of the deed
are here quoted by the court, and
paragraph from an opinion Of the su-
preme court in the case of Gagliardo vs /.
Dumont, 81 CAL, page 105, in which it
is held it must be a joint act by hus-
band wife. The opinion then continues
The deed under consideration in that
case was. executed in 1872, and it is
claimed by the defendant that the case
is not authority now, because the law
then in force is materially different
from the present law. A comparison of
the two statutes, however, shows that,
though different in phraseology, they
are precisely the same in requiring a
conveyance of the homestead to be exc
cuted and acknowledged by the wife,
although the former law did not in
terms require it to be acknowledged by
the husband. think, therefore, the
decision is applicable to the present
case.
1t is further claimed that section 1857,
above quoted, which was passed in 1891,
has modified section 1912 by removing
all differences heretofore existing be-
tween the manner of executing convey
ances by married women and other per-
sons. Whether an ordinary conveyance
by married woman must under the
present law be acknowledged or not ia a
question not necessary to decide. The
section last named does not purport to
| deal with any conveyances except those
of married women. 1t does not profess
to change the law in relation to the con-
veyance of homesteads, nor in relation
| to conveyances by men.
Section 242 makes it imperative upon
the husband to acknowledge the con-
veyance OF the homestead as upon the
wife, and declares such conveyance to
be invalid unless executed and acknowl-
| edged by both. There is nothing in
section l1S7 which is inconsistent with
this requirement.
Upon the authority OF Gragliardo vs.
Dumont therefore hold that the deed
| in question is insufficient to convey the
homestead.
1t appears. however, from the evil
| dence that at the time of the making
and recording the declaration of home
stead a brick building occupied the
front so feet of the lot, in which the
plaintiff Martin was then carrying on
the business of keeping saloon. The
defendant claims that this portion OF the
lot, with the ground connected with it,
could not be selected as a homestead, as
it did not constitute part of the family
residence, but was used for business
purposes. In this I think the defendant
is right.
The judgment will therefore be in
favor of the defendant for the front por-
ton of the lot extending back 60 feet
from the east line OF the eastern side.
walk on San Fernando street, and in
favor of the PLAINTIFF for the remainder
of the lot with the appurtenances and