The herald., 1896-10-07
WHAT is A HoMEsTEAD2
The Necessary Qualifications Set Forth
in An Opinion

Judge Van Dyke yesterday handed
down an opinion in the case Of William
D. Harris ct al, VS.. H. Morse and H. H.
Yonken, wherein 1t was sought to en-
join Yonken, as constable, from proceed
ing with the sale Of certain property, on
the ground that said property levied
upon Is homestead.
The property is lot 232 South Water
street, East Los Angeles. on which
building was erected by plain
tiffs after their marriage in
1885, The front part of the build
ing was used as a store, and they lived
in the rear, and SO lived up to July
4. 1895, when the building was destroyed
by fire. The plaintiffs moved to neigh
bors house but on July Gath they took
their bedding, etc, to 4 small barn
which was built IN the rear of their lot.
and having slept there that night, filed
the declaration Of homestead on July
26th.
In Gregg VS.. Bostwick, SO Cal 227,
1t is said: Both in the constitution and
in the statute the word homestead is
used in its ordinary or popular sense, or,
in other words, its legal sense is also its
popular sense. 1t represents the dwell
ling house in which the family resides,
the usual and customary appurtenan-
CCos Ill ClOtulA6s VI CtSIy hluu
necessary or convenient for family use,
and lands used for the purposes there
Of. If situated in the country they in
clude q garden or farm; if situated in
the city or town it may include one or
more lots or one or more blocks. In
either case 1t is unlimited by extent
merely; 1t need not be compact body.
On the contrary, 1t may be intersected
by highways, streets or alleys"
The court in this case, says Judge
Van Dyke, emphasizes the fact that
there must be q dwelling house in order
to constitute homestead, and the code
definition of homestead follows this
suggestion, and transposes the order
adopted by the prior statutes: "a
homestead consists of the dwelling house
IN which the claimant resides and the
land on which the same is situated, Sc
lected as in this title provided" c. G..
1887.
In Babcock VS.. Gibbs, So Cal. 629
the claimants went on the lot and used
blanket for tent and slept there
and after filing the declaration of home
stead next day, commenced the cree.
ton of dwelling house into which
they moved when completed and re-
sided, and 1t was held not to have been
homestead at the time the declara.
tion was filed.
After reviewing several other cases
uu6C Ndh Lyme says. Ine TACT oil
having resided on the lot in question
for number of years prior to the de-
struction of the residence by fire does
not aid the claimants, nor the fact that
a dwelling house was built on the lot
subsequent to filing the declaration.
There must have been at the time
dwelling house, as the code requires.
IN which the claimants resided as
home. There can be no home or home
stead under our code without q dwell
ling house; but as already stated, that
dwelling house may be used for other
purposes and still be homestead If
It be. nevertheless, actually and in-good
faith dwelling house in which the
family resides.
The evidence in this case clearly
shows that the barn in question was
not the dwelling house Of the claim
ants. Their dwelling house had been
consumed by fire and the next. dwelling
house on that lot was the one built to
replace 1t. They never intended to
make the barn their place of residence:
the object of sleeping in the barn loft
was for the purpose of filing their dec
laration Of homestead, but under the
code and decisions, this does not con-
stitute the premises a homestead In
law"
Judgment will go for the defend
ants.