Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Department Two Rehearing (Denied, Granted) 57 Cal. 437 at 444.
Appeal from an order in the Probate Court of Santa Cruz County. Craig, J.
COUNSEL
At the time appellant executed the deed to Fred W. and Charles Moore, her husband had just died, and no administration of his estate had commenced, and she had no homestead in the premises. No homestead could even have been applied for until the inventory of the estate of the deceased had been returned to the Court. ( Code Civ. Proc. § 1465.) Her deed was a quitclaim, and did not estop her from subsequently asserting a claim to the premises. (Morrison v. Wilson , 30 Cal. 344; McDonald v. Edmonds , 44 id. 328; Jackson v. Wright, 14 Johns. 193.) If the appellant had expressly released the homestead right, she would not have been estopped from subsequently demanding that a homestead be set apart under the statute. (Thompson's Homesteads and Exemptions, § 569, citing Miller v. Marckle , 27 Ill. 405.)
Estoppel can have no application here, because the homestead must be set apart by the Court for the useof the family of the deceased, including the wife and children. ( Code Civ. Proc. § 1465.) And if the appellant can be estopped by her deed of her interest in the land from obtaining a homestead, the children in her custody are, without any agency on their part, practically deprived of their statutory right, for they must follow the mother. This would be giving the homestead sections of the Code a very narrow construction.
The petitioner had not at the time of the execution of this deed applied to the Court to set apart a homestead. The Court could not acquire jurisdiction to set apart a homestead, unless a petition should be filed therefor. (Cameto v. Dupuy , 47 Cal. 79.) After the filing of the petition for a homestead, the petitioner could acquire no homestead interest in the property until the Court had made an order setting apart the homestead. (Boland Estate , 43 Cal. 640.) And yet, by a deed of petitioner not mentioning the homestead, and in advance of any steps in the direction of a homestead, it is claimed that the family has lost the homestead right. That right was incapable of sale and transfer. (Bowman v. Norton , 16 Cal. 213; Thompson's Homesteads and Exemptions, § 452.) At any rate, the petitioner could not by her act alone destroy the homestead right. (Lies v. De Diablar , 12 Cal. 327.) To have destroyed the homestead right would have required the joint action of all the members of the family. (Poole v. Garrand , 6 Cal. 71.)
If the homestead had been set apart to the family, the petitioner could not, on grounds of public policy, have sold the homestead premises. (Thompson's Homesteads and Exemptions, § 551.) Much less, then, could appellant have done so in advance.
Charles B. Younger, and F. J. McCann, for Appellant.
John C. Hall, for Respondents.
Upon the death of her husband, the petitioner had a right to one-third of his estate as his heir at law, and also the right to a homestead therefrom. These rights she possessed by virtue of her being the widow of the decedent. That was the essential fact upon which those rights rested. They were consummate immediately her husband died. (Doane v. Doane , 33 Vt. 649.) The machinery of the Courts is merely the process by which those rights are enforcible.
By her deed she conveyed those rights and all their concomitants to her grantees. If the language of the deed was obscure, ambiguous, or uncertain, it would be construedmost strongly against the grantor. (Sullivan v. Davis et al. 4 Cal. 291; Dodge v. Walley , 22 id. 225; Hagar v. Specht , 52 Cal. 779.) But as it is clear, comprehensive, and certain, construction is unnecessary.
Such a deed is a conveyance, which transfers to the grantee all the estate of the grantor, of every description, as completely as would a deed with warranty. As a conveyance, it is in every respect, save the transmission of an after-acquired title, of the same dignity and effect as a deed with warranty. The principle of estoppel applied to the estate conveyed by quitclaim, the same as to one conveyed with warranty. The law holds the estate conveyed by the one as inviolate as that conveyed with the other. (Sullivan v. Davis et al. 4 Cal. 291; Carpentier v. Williams , 25 id. 154; Downer v. Smith , 24 id. 114; Crane v. Salmon , 41 id. 63; Gaff v. Middleton , 43 id. 341; Frey v. Clifford , 44 id. 335.)
The right of property and exclusive possession passes by a quitclaim deed. (Gazley v. Price, 16 Johns. 267; Ketchum v. Evertson , 13 id. 359; Potter v. Tuttle , 22 Conn. 512; Kyle v. Kavenagh , 103 Mass. 356.)
The effectof this deed is also to estop the petitioner from asserting any claim to the property conveyed inconsistent with the ownership and enjoyment thereof by the grantee. The decisions on this subject are clear and uniform.
A grant in its own nature amounts to an extinguishment of the rights of the grantor, and implies a contract not to reassert that right. A party, therefore, is always estopped by his own grant. (Fletcher v. Peck, 6 Cranch, 87; Bond v. Bond, 7 Allen, 1.)
Where a person has conveyed land, he will not be permitted afterwards to claim it in opposition to his own deed, although the deed may not amount to an estoppel. (Jackson v. Stevens, 16 Johns. 110; Jackson v. Bull, 1 Johns. Cases, 90, 91.)
A party who has executed a release is estopped from asserting title. (Jackson v. Foster, 12 Johns. 488; Walworth v. Town of Readsboro , 24 Vt. 252.)
The same principle was applied in a recent case in Massachusetts. A widow procured her dower in her husband's estate to be admeasured to her, and then conveyed all her " right of dower and power of thirds in the lot of land and the buildings thereon," and " all the interest assigned in therents and profits of said estate by the assignment of dower in said estate." Afterward she petitioned the Court to set apart to her a homestead out of this property. The grantee of her dower interest resisted the petition. The Supreme Court, in giving its opinion, used these words: " He" (her grantee) " is therefore entitled to one-third of the rents and profits of the whole land, and she can do nothing to impair the grant which she has made ." The petition was denied. (Bates v. Bates , 97 Mass. 392.)
The Court will notice that in this case the dower interest only was conveyed, while in the one at bar the entire interest was con veyed. The difference between the two is in favor of the one at bar. (See also Etchborne v. Auzerais , 45 Cal. 121.)
The petitioner now comes before the Court in this attitude: She has conveyed her entire interest, claim, and demand, both at law and in equity, to the deceased's children. She asks, despite all this, to have a homestead meted to her from the land which she conveyed.
Suppose, instead of conveying to these grantees--children of decedent--she had conveyed to other parties--strangers--could it be claimed that she could havea homestead out of the estate which she had parted with, and thus impair it? Could she be allowed to resume a portion of the estate which she had conveyed? What is the difference between the case supposed and the one at bar?
Should the petition be granted, the result will be that after the petitioner has conveyed all the land from which she asks a homestead, and all her " estate, right, title, interest, claim, and demand, both at law or in equity ," therein to the Moore children, the Court, against the protest of the grantees, and without consideration, takes from them the estate which she conveyed, and reinvests it in their grantor.
In order to show more clearly why this petition should not be granted, we invite the attention of the Court still further to the effect its allowance will produce.
The order granting such petition is a judgment of the Court, binding upon all parties, precisely like any other judgment, endowed with the same presumptions, and as difficult to set aside. It was so held by the Supreme Court of Texas.
" The order," says that Court, " has the effect of a judgment, binding all parties, whether contesting or not, until set aside by somelegitimate means. It severs so much from the estate, and withdraws it from administration." (McLane v. Paschal, 47 Tex. 371; Estate of Burns , 54 Cal. 223.)
Now let us see the confusion which will ensue a decree in favor of the petitioner. It will, of course, be recorded. ( § 1486, Code Civ. Proc.) There will then be on record a deed from the petitioner to Fred and Charles Moore, under which they will claim possession; also a subsequent judgment, rendered by a competent court, under which the petitioner will claim possession.
JUDGES: Myrick, J. Morrison, C. J., and Sharpstein, J., concurred.
OPINION
MYRICK, Judge
[Subsequently, the appeal was reheard in Bank, and the following opinion and judgment was rendered.]
Myrick, J.:
This is an appeal from an order denying the application of the widow of deceased that a homestead be set aside. The case was heard in Department Two of this Court, and its opinion was filed October 7th, 1880. Subsequently, an application that the case be heard by the Court in Bank was granted, and such hearing has been had. We are satisfied with the correctness of the opinion of the Department. The homestead to be set aside should be for the benefit of the widow and of such of the children of the deceased as shall be minors at the date of the order setting it aside. It seems to us immaterial that the petition of the widow was on behalf of herself alone. Her petition was sufficient to set the proceedings in motion, and the Court will, where there are minor children, see that their interests are protected.
Referring to § 1485 of the Code of Civil Procedure, it may well be said that the language there used is quite clear if applied to a homestead declared in the lifetime of the spouses; but if an attempt be made to apply it to a probate homestead, the language is quite obscure, if not meaningless. " Persons succeeding by purchase or otherwise to the interests, rights, and titles of successors to homesteads, or to the right to have homesteads set apart," etc. Does that language embrace the idea, " successors to the right to have homesteads set apart?" If so, there is no meaning in it; there is no such thing as an heirship to have a probate homestead, though there may be heirship after the property has been set aside. Does the language embrace the idea, " succeeding by purchase or otherwise to the interests of successors to homesteads?" If so, the words are equally meaningless; because, as stated in the opinion of the Department, nothing which is the subject of sale vests prior to the setting apart. It is true there is a right to apply, and there is equal power in the Court to designate this or the other piece of land; no interest in any parcel of land vests until the action of the Court. In the case of a declared homestead, an instance can be put where those words would apply, viz.: A dies, leaving a widow, a homestead having been declared in his lifetime; the widow thereupon has a title to the homestead, and the right to apply to have it admeasured and set apart to her; before doing so, she conveys the homestead property, or dies, leaving heirs; in such case, her grantees or heirs (as the case may be) succeeding " by purchase or otherwise" to her homestead right, i. e., the property which came to her as survivor, may apply to have the homestead, or rather that which was the homestead, but is no longer a homestead (having passed out of and beyond the scope of a homestead, and become property discharged of its former character), set apart to them out of, removed from the administration of, the estate of A, deceased. But an attempt to apply those words to a probate homestead would not readily find a solution. If a widow die before applying for a probate homestead, any right to apply which she might have had is gone; no person succeeds to that right; no adult child of hers can have a right; no minor child can have any right increased by her death; therefore there can be no such thing, under this statute, as successor to the right to have a probate homestead set apart. We are therefore of opinion that the section does not apply to the case before us. It might be said that, even if the Legislature intended that a right to apply for a probate homestead was the subject of bargain and sale, it was not intended that any less interest than the entire right could be acquired by a vendee; for, if one of the parties entitled to apply--say the mother of minor children--could sell her right, and her grantee apply, such grantee would be entitled to the possession of the homestead as against the mother, and would have a joint interest with the children, to the exclusion of the mother: which would be repugnant to the very idea of a homestead. It being the object of the Legislature to provide for a homestead, i. e., a place of home for the family, we cannot hold that the statute enacted for that purpose shall have the construction and effect of destroying the object in view.
The judgment and order are reversed, and the cause is remanded for further proceedings.