Opinion
Appeal from the District Court, Twentieth Judicial District, County of Santa Clara.
The defendant, John R. Green, pre-empted the northwest quarter of section fourteen, township eight south, of range five west, Mount Diablo meridian, lying in San Mateo County, containing one hundred and sixty acres. On the 1st of November, 1867, he received a patent for the same from the United States. On the 29th day of January, 1868, he was residing on the land with his wife and family, and made and filed a declaration of homestead on the same. In 1872 the defendants removed with their family to Santa Clara, for the purpose of educating their children. On the 14th of November, 1872, the husband, John R. Green, conveyed the quarter section to the plaintiff Kinsey, but the wife did not join in the deed. In the same month the defendants removed with their family to the State of Illinois, with the intention of permanently residing there. No abandonment of the homestead was made. In May, 1873, the husband returned to California; and in August, the same year, the wife returned with their children and joined the husband here. The conveyance of Green to Kinsey purported to convey the premises in fee simple absolute. The court, among other findings, found as follows: " The dwelling-house on the premises described in the complaint, with fifty-three acres of land adjacent thereto, and the appurtenances, is of the value of five thousand dollars." There was no finding as to the value of the land when the deed by Kinsey was executed.
The court, as a conclusion of law, found as follows: " That the conveyance made by the said Green to plaintiff, and heretofore referred to, was a good and valid conveyance of so much of the premises therein described as was, in value, in excess of five thousand dollars, and that as to said excess, plaintiff is entitled to the relief sought." The plaintiff brought this action to quiet his title to the whole tract of land conveyed to him. The court rendered judgment that the defendants have set off to them, as their homestead, fifty-three acres of the land, in a convenient and compact form adjacent to, and so as to include the dwelling-house on said premises. It was further adjudged that the plaintiff was the owner in fee of all the land except the fifty-three acres. The county surveyor was directed to survey and set off the fifty-three acres, and to report the same to the court.
The plaintiff appealed from that part of the judgment which awarded the defendants a homestead of fifty-three acres; and the defendants appealed from that part of the judgment which awarded the plaintiff all the land except the fifty-three acres.
The Supreme Court, at the October term, 1875, reversed the judgment, and directed the court below to render a decree for the defendants on the findings. A rehearing having been granted, the Court, at the July term, 1876, rendered the following opinion.
COUNSEL
Houghton & Reynolds, for the Plaintiff.
Campbell, Fox & Campbell, for the Defendants.
OPINION By the Court:
The judgment heretofore entered in this court in the above-entitled cause is hereby modified by striking out so much thereof as directs the court below to enter a decree for the defendants upon the findings, and in lieu thereof the cause is remanded with an order to the court below to find what was the value, at the date of the conveyance from John R. Green to the plaintiff, of the entire tract conveyed; and to that end new proofs may be adduced on this point by the respective parties, as they may be advised. On the filing of the finding on this point, the court below will proceed to render judgment on all the findings.
Remittitur forthwith.