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the widow may convey her right to such a objected, and the action of the court In adhomestead, and that the grantee takes as mitting the evidence is assigned as error 28 a tenant in common with the children, is follows: (1) That the appraisements (there in effect to say there shall be no homestead. were two) are invalid, because not verified The law consecrates the homestead to a spe by the administratrix as required by sec cific purpose, and that purpose can only be tion 1449, Code Civil Proc. (2) The appraise accomplished by making it a home for the ment was not returned within three months, family. It must be held that the latter as required by section 1443, Id. (3) There clause of section 1485 of the Code of Civil is no authority for appraising one parcel of Procedure, which defines the rights of suc land in two parcels "for the purpose of bome cessors by purchase to homesteads, and to stead" or for any other purpose. (4) There the right to have homesteads set apart to was no authority for appointment of the last them, relates only to such purchasers as set of appraisers, unless the first appraisehave succeeded to the rights of all the per ment was invalid. If the first appraisement is sons entitled to a homestead, and has no invalid, it was because of the insufficient affapplication to a case like the present, where davit of the administratrix, and, if this is so, defendant has succeeded to the right of one the second is equally invalid, because not only of such persons. It follows that the showing by affidavit of administratrix that widow's conveyance was subject to the all the estate was appraised, or what debts homestead right which it was the duty of were owing by the affiant to deceased. (5) the court to set apart, and, when so con Error in admitting in evidence the decree of summated, the title which she bad conveyed, distribution, which is invalid for the reason if not defeated, was, as to the rights of de that no valid appraisement or valid inventory fendant, at least suspended during the period was ever made or had, and because such de of the occupancy of the property as a home cree does not affect the title of defendant or stead. Whether establishing the status of his right to possession. So far as the infant the property as a homestead had the effect plaintiff, Mary O'Connor, is concerned, none of defeating the title conveyed to defendant of these proceedings can affect her right to in toto, or only to hold it in abeyance, in recover. If the probate proceedings are Foid, volves considerations of deep importance she may still, as the heir of her deceased which are not necessary to the decision of father, recover her interest in the real propthis case, and upon which no opinion is ex erty, and possession thereof, except as pressed. The contention of appellant that against the administrator. Code Civil Proc. he has not contested the right of plaintiff $ 1452. The affidavit of the administratrix, Mary O'Connor to possession as a tenant indorsed upon or attached to the second inin common with him, cannot be, on the face ventory and appraisement, is almost in the of the record, maintained.

precise language of section 1449 of the Code The complaint avers title in plaintiffs and of Civil Procedure, except that in the final ouster by defendant. The answer denies sentence the last word is “decedent" instead each and every material allegation of the of “affiant,” thus making the affidavit read complaint, and pleads the bar of the stat "and of all just claims of the said deceased ute of limitations. The denial of title of a against the said decedent" instead of "against cotenant in an answer is equivalent to an the said affiant.” This is a mere clerical er ouster. Greer v. Tripp, 56 Cal. 209; Spect ror, which could not in any wise vitiate the v. Gregg, 51 Cal. 198; Packard v. Johnson, subsequent proceedings. The object of me Id. 545; Miller v. Myles, 46 Cal. 535. Fur quiring an atfidavit by the administrator or thermore, the agreed statement of facts ad executor to accompany the inventory and apmits as follows: “On the 15th day of March, praisement is, apparently, not to give ans 1890, the plaintiff, the said Maggie Phelan, validity to the inventory as such, but to fur on behalf of herself and said Mary O'Con nish evidence that it contains all the prope nor, demanded of the said defendant that erty within the knowledge and possessing of they be let into possesssion of the said prop the affiant; thus serving as a check upon the erty first herein specifically described, and administrator. We have no doubt that, as a so set apart as a homestead; and the said basis for action by the court in setting apart defendant refused, and has ever since with a homestead, an inventory and appraisement held the possession of said property from the without any affidavit by the administrator, plaintiff." This was abundantly sufficient as provided for in section 1449, Code Ciri evidence of ouster and refusal to deliver pos Proc., would be quite sufficient. The classe session on demand. Demand and refusal in the Code under which the administris of possession are not ouster, but they are is required to file an inventory and appritet such evidence as will authorize a court to ment within three months after his apport find an ouster.

ment is directory, and does not render thesis To the introduction of the probate pro invalid when subsequently filed. So, too, the ceedings in the matter of the estate of filing of a second inventory is of no moment John O'Connor, deceased, purporting to show If the first is in proper form, and the second the appraisement and inventory of the es involves no additions or changes, it is mere tate, the order setting a part the homestead, surplusage; but it may often occur from the and the decree of distribution, the defendant discovery of other property, the destructim

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or loss of a portion of the property, and from We have referred to these several objecII various other causes, that a second or further tions as if they were presented on an appeal

inventory and appraisement is desirable. In from the decree setting apart the home mall such cases the court, under the powers stead, but it must be borne in mind that this

' conferred upon it, may, we have no doubt, is a collateral attack upon those proceedings, pour inform itself by means of a new or further and can only avail by showing such errors ir inventory and appraisement of the true con as render the decree not voidable, but abso dition of the estate.

lutely void. Kearney v. Kearney, 72 Cal. In the present instance we may well con 592, 15 Pac. Rep. 769; Gruwell v. Seybolt, my clude the court desired a segregation of the 82 Cal. 10, 22 Pac. Rep. 938; Leach v. Pierce, ge property for homestead purposes. This was 93 Cal. 618, 29 Pac. Rep. 233; Estate of Max.

* proper. The Code does not point out the well, 74 Cal. 385, 16 Pac. Rep. 206; Code 47 steps to be pursued in setting apart a home. Civil Proc. $ 1908, subd. 1; 1 Freem. Judgm. London stead where none has been declared by the $ 319b. The court did not err in ruling pas husband and wife, or one of them, during out as immaterial and irrelevant the evi

the lives of the parties; and in such cases dence that, after the death of her husband, the court may adopt any suitable method of Maggie O'Connor purchased with her sepaprocedure conformable to the spirit of the rate funds a lot of land in the town of PoCode. Code Civil Proc., $ 187.

mona, and resided upon the same with her It was important for the court to be in children, and declared a homestead thereon, formed as to the value of the homestead which lot was sold under a foreclosure sale, wbich it was its duty under the law to set and subsequently redeemed and sold by her apart. It is objected that the decree setting before the application for a homestead here apart the homestead is invalid, on account in. If, as before stated, the right to a bomeof the appraisement and inventory not be stead herein was one which inured to her ing regular, and for the further reason that and her children Jointly, which she could “it does not set the property apart to the not individually convey or waive, because of widow and minor children, but to the family; such joint right, then this evidence was not and it does not purport to set apart for a lim- admissible, as the only effect of it would be ited period, but purports to set it apart ab to show a waiver on her part. For like reasolutely," etc. It is only where a homestead sons there is nothing in the decree of distriis set apart from the separate property of bution, entered long after the homestead was

the deceased that it is required to be for a set aside, which could have a bearing upon 7 limited period. Code Civil Proc. $ 1468. The the action of the court in the homestead mat.

petition for a homestead asked that it be ter, or affect the rights of the plaintiffs there set apart for the widow and her two chil. under. The possession of defendant under

dren. In the decree the language used is that the agreement of April 14, 1883, was in subthe property (describing it) "is hereby set ordination to the title of plaintiffs, and did

apart for the use of the family of said not become adverse to plaintiffs, or either of 1.John O'Connor, deceased." The family of them, until the date of the deed of SeptemE John O'Connor, deceased, is shown by the ber 1, 1885, This action was commenced : record to have consisted of the widow and April 11, 1890, less than five years after

two children. The term "family" is used in the execution of the deed; hence the cause - the chapter providing for homesteads in the of action was not barred by the statute of

sense of denoting the surviving wife and limitations. The judgment and order apchildren. It relates to "the provision for pealed from should be affirmed. - the support of the family and of the home- stead."

Section 1464 provides that the We concur: HAYNES, C.; VANCLIEF, widow or children may remain in posses O.; TEMPLE, C. sion of the homestead, "of all the wearing apparel of the family," etc. Section 1466 PER CURIAM. For the reasons given in requires the court to make allowance for the the foregoing opinion the judgment and ormaintenance of the family. Section 1468 pro der appealed from are affirmed. vides that when property "is set apart to the use of the family," etc. If the estate is of less value than $1,500, and there be a widow or minor children, the court shall require

STORY & ISHAM COMMERCIAL CO. v. parties interested to show cause why it

STORY et al. (No. 19,015.) should not be set apart for the use of the

(Supreme Court of California. Oct. 10, 1893.) family. Section 1469. The term "family" throughout the chapter is used as synony

COUNTERCLAIM CONVERSION DAMAGES-JOINT

DEFENDANTS-DEFENSE AS TO ONE. mous with and as representing the surviv

1. Defendant agreed to pay the debts of ing wife or husband and children, if any.

plaintiff corporation, and, as security, plaintiff When the court used the term “family" in conveyed to her all its notes and accounts, its decree we must hold that it expresses the

merchandise on hand, and all its property,

with certain exceptions. It was agreed that meaning and is used in the sense of the

plaintiff sbould endeavor to sell the merchanstatute, and is therefore sufficiently explicit dise, and apply the receipts to the payment of to describe the widow and children.

defendant, and that the property conveyed to

defendant should not be sold at less than its Company, pursuant to a resolution of its cost to plaintiff, without the consent of plain- | board of directors at a meeting thereot duly tiff's directors. Subsequently, defendant, without plaintiff's knowledge, sold a portion of the

called and had, bereby agrees to pay to said goods, and plaintiff sued for conversion. De Mrs. A. B. Story all sums paid or agreed to fendant, for answer, set up the whole agree be paid by her on account of said debts, inment; alleged performance on her part, and

cluding costs and expenses, notes, attorneys' that there was due her, above the value of the property sold, a large sum; and prayed an ac

fees, and judgments, and such things as she countiug. Held, that such answer was a prop may pay on account of said debts, and er counterclaim, within Code Civil Proc. 8

in procuring the money with which to meet 438, providing that “a cause of action arising out of the same transaction" may be so set up,

the same. And, as security for the payment and the fact that plaintiff alleged no facts to

of said sums, the Story & Isham Commercial show that the counterclaim arose out of the Company agrees to and does sell, assign, con same transaction did not prevent defendant

vey, and transfer to said Mrs. A. B. Story from setting out the entire transaction, and thus showing the relation of her claim thereto.

all notes, accounts, and other demands due 2. The action being to recover the value of or payable to said company, and all goods the goods, and not the goods themselves, the and merchandise on hand, in store or in tranright of defendant to assert a lien thereon was

sit, owned by it, and all other property ownnot involved, so that Civil Code, $ 2910, providing that the wrongful conversion of person

ed by it, at jaw or in equity, excepting, bowal property by a person holding a lien thereon ever, that said company reserves the right to extinguishes the lien, had no application, for, use in its business the first sums collected by its choice in its form of action, plaintiff by it, either on sales made or demands due, adopted the sale, and affirmed the title thereby conveyed.

not exceeding $2,000, and also reserves the 3. The trial court found that, at all times real estate owned by it; but all sums realafter making the agreement, defendant claim

ized from a sale, pledge, or mortgage thereof, ed to be the owner of the property mentioned

not exceeding $2,000, shall be applied as a therein, so that her making the sale was in pursuance of her construction of its terms. payment on the sums payable to said Mrs. The court also found that she made the sale A. B. Story, as above specified. Said Comon an agreement by her vendee that he would

mercial Company shall use its best efforts pay the price on the debts of plaintiff for which she had become liable. Held, that the

to realize as soon as practicable on said de agreement itself not being free from ambiguity, mands and merchandise, and apply the sums and defendant having acted according to her received therefor on the sums payable to said construction of it, while, if her construction

Mrs. A. B. Story, as herein provided. The was wrong, and plaintiff suffered thereby, it had a cause of action against her, yet it could expense of running the said company shall not recover damages independent of an ad be divided between the old business and the justment of their respective rights under the

new in proportion to the sales made on de entire agreement. 4. Where the liability of a number of de

count of the goods hereby sold to Mrs Story fendants for conversion, if any exists, is sev

and those sold on account of transactions eral as well as joint, a defense set up by one subsequent to February 1, 1891. The properthat will defeat plaintiff's recovery is avail

ty hereby conveyed to Mrs. A. B. Story shal able for the other defendants.

not be sold at less than it cost the Commer In bank. Appeal from superior court, San

cial Company, without a direction of the Diego county; W. L. Pierce, Judge.

board of directors of said company. ExecutAction by the Story & Isbam Commercial

ed and delivered this 5th day of February, Company, a corporation, against Adella B.

1891. The Story & Isham Commercial Co. Story and others, for the alleged conversion

Per A. H. Isham, Vice Pres. and Mgr. Adelof certain goods. Judgment was entered in

la B. Story." At that time the plaintiff was favor of plaintiff, and both parties appeal.

engaged in the business of merchandising. Reversed.

and was owner of certain personal property, Mr. Works and M. S. Babcock, for plain which it bad in its custody, and which was tiff. Luce & McDonald and Sprigg & Barber,

included in the aforesaid agreement. On the for defendant

26th of February, 1891, Mrs. Story, without

the knowledge and consent of the plaintiff. HARRISON, J. In February, 1891, the sold to the defendant Bates a portion of said plaintiff, being largely indebted to Mrs. Adel personal property, who took possession there la B. Story, defendant, and also to other cred- of without the consent of the plaintiff, and itors, made an agreement with her as fol afterwards sold and disposed of the same. lows: "Whereas, Mrs. A. B. Story has agreed On the 2d of March, 1891, the plaintiff to pay all the debts existing against the brought this action against the defendants Story & Isham Commercial Company on the for the conversion of the personal property 1st day of February, 1891, including those so conveyed by Mrs. Story to the defendant payable to herself; and whereas, said Story Bates. The defendants, in their answer, set & Isham Commercial Company desires to se up the foregoing agreement, and the circuitcure said Mrs. Story for the payments made stances under which it was made, alleging and to be made by her on account of the said performance by Mrs. Story of her part of debts: Now, therefore, in consideration of the agreement, and that she had paid out said agreement and the payment of said on account of the debts of the plaintiff the debts, the said Story & Isham Commercial sum of about $115,000, and that there was

due to her, above the value of the property term “transaction," is "a matter or affair, which she had sold to Bates, upwards of either completed or in course of completion." $50,000, and prayed for an accounting, and Mr. Pomeroy, in his treatise on Remedies judgment in her favor against the plaintifr. and Remedial Rights, (section 774,) defines The court finds that the cost price of the the term, as used in this section, to be “that property sold by Mrs. Story to Bates was combination of acts and events, circumstan$38,550; that that was also the value of ces and defaults which, viewed in one aspect, the same; that at the time when she sold results in the plaintiff's right of action, and, the goods the plaintiff was indebted to her viewed in another aspect, results in the dein the sum of $24,206; and that she had fendant's right of action," and says, further: also caused debts of the plaintiff, to the “As these two opposing rights cannot be esamount of $5,523, to be satisfied by having actly the same, it follows that there may be, its creditors accept in satisfaction of said and generally must be, acts, facts, events, debts certificates of deposit issued therefor

and defaults, in the transaction as a whole, En by the California National Bank of San Die

which do not enter into each cause of action, go. The court also found “that by an ar

but are confined to one of them alone." See rangement between the defendant Adella B. also, Bank v. Lee, 7 Abb. Pr. 372; Ritchie Story and the California National Bank the

V. Hayward, 71 Mo. 560; Judab v. Trustees, said bank, on the 26th day of February,

16 Ind. 60. Every transaction is more or 1891, canceled, and marked 'Paid,' notes of

less complex, consisting of various facts and the plaintiff held by said bank in the sum of

acts done by the respective parties; and it 1: $15,200, and the same were thereby paid;" frequently bappens that one or more of these and also that, after the sale and taking of

acts would, if viewed by itself. be such a said property, she had paid the balance of

violation of duty as to give to the other a the debts of the plaintiff, amounting, with

right of action, but the obligation thus cre

ated may be so counterbalanced by other the sum paid and amounts due her, to $113,

matters growing out of the same transaction 000, a portion of which was paid out of the 11' proceeds of the property sold by her to

that no compensation ought to be made

therefor. While the parties are carrying Bates. Upon these findings the court made its conclusions of law that the plaintiff was

their agreement into execution, and mutual

rights and obligations accrue by reason of entitled to recover from the defendants the

the failure of either or both of them to comvalue of the property converted by them,

ply strictly with its terms, neither party with interest thereon, amounting to $40,678.

should have the right, so long as the agree79, less $29,717.54, the amount, with interest

inent is in force, and is in process of executhereon, due from the plaintiff to Mrs. Story,

tion, to recover the damage sustained by and the amount for which she bad caused its

him from any breach of duty by the other, debts to be satisfied by the certificates of de

without at the same time satisfying any obposit issued by the bank, and that the plain

ligation against himself growing out of the tiff was entitled to judgment in the sum of

same aitair. In such a case the rights of $10,961.25, and rendered judgment according

the one are so dependent upon the rights ly. From this judgment, both parties have of the other, that simple equity requires that appealed, -the plaintiff, upon the ground the respective causes of action in behalf of that the court erred in allowing any deduc each should be adjusted in a single suite tions from the value of the goods sold by From an early day the tendency of judicial Mrs. Story to Bates; and the defendants, on decisions has been to avoid circuity of acthe ground that Mrs. Story should have been tion and multiplicity of suits, by permitting allowed the entire amount of her payments matters growing out of the same transacfor the plaintiff, and should have had a judg tion, which might coustitute an independent ment in her favor for the difference between cause of action, to be given in evidence by that amount and the value of the goods. way of defense; and the foregoing section

It is contended by the plaintiff, in the first of the Code of Civil Procedure is an addiplace, that the matters set forth in the an. tional legislative step in the direction of this swer do not constitute a counterclaim to the judicial tendency. As a corollary therefrom, cause of action set forth in the complaint, it follows that the form in which the plaintiff and were not available as a defense thereto. may set out his cause of action ought not Section 438, Code Civil Proc., provides that to be conclusive upon the right of the dethe counterclaim which the defendant is per fendant to set forth his counterclaim in his mitted to plead "must be one existing in fa

The plaintiff is to set forth the vor of a defendant and against a plaintiff facts which constitute his cause of action: between whom a several judgment might be but, if the other facts in the transaction are had in the action, and arising out of one of so connected with those set forth as to dethe following causes of action: (1) A cause feat their legal effect, the defendant is not of action arising out of the transaction set precluded from setting them up by reason of forth in the complaiut as the foundation of the form which the plaintiff may have chosen the plaintiff's claim, or connected with the for presenting his own side of the case. subject of the action.” One of the defini Pom. Rem. & Rem. Rights, $ 772; Gordon v. tions given by the Century Dictionary to the Bruner, 49 Mo. 570; Brady v. Brennan, 25

V.34P.00.7-43

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Mind. 210; Bitting v. Thaxton, 72 N. C. 519; ment as may be consistent with the case, a
Thompson v. Kessel, 30 N. Y. 383; Chandler presented by both parties.
v. Childs, 42 Mich. 128, 3 N. W. Rep. 297. Much of the argument of the plaintif bei
It is for the purpose of enabling the court been directed to the terms of section 21
to render a judgment by which the rights of Civil Code, which provide that the wrongti
the parties may be tinally determined in the conversion of personal property by a persa
same action, rather than to compel another holding a lien thereon extinguishes the lit
action, that the Code permits a defendant to But, as this action is brought to recover the
set up in his answer any new matter arising value of the goods, and not for the gol
out of the transaction set forth in the com themselves, the right of the defendant to
plaiut as the foundation of the plaintiff's assert a lien thereon is not involved. I
claim; and, if the plaintiff omits or fails to the plaintiff had brought its action again
set forth in his complaint the entire transac Mrs. Story to recover possession of the gok
tion out of which bis claim a rose, the de the effect of this section would have png
fondant may supplement this omission by erly arisen; but, by bringing it for the value
setting forth in his answer the omitted

of the goods, he adopts her sale, and afios facts, so that the entire transaction may be

the title conveyed thereby. It is a medes before the court. The plaintiff is not at lib

tablished principle that when one has ek erty to select an isolated act or fact, which

verted to his own use, or sold, the w is only one of a series of acts or steps in the

of another, the latter may waive the for entire transaction, and insist upon a judg. and sue in assuinpsit. It is immaterial in ment on this fact alone, if the fact is so con

which mode he seeks redress for the wron nected with others that It forms only a por

In either case, he can claim only a pecuniary tion of the transaction. The transaction compensation; and whether he claim this a which was the foundation of the cause of ac- assumpsit, as upon a sale, or for the raly tion set forth in the complaint herein is not

of the goods, as by conversion, he esti limited to the facts therein set forth, but in

lishes only a pecuniary obligation, which the cludes the entire series of acts and mutual

defendant may controvert by any facts as conduct of the parties in the business or por

nected with the transaction out of which ceeding between them which formed the basis of their written agreement. If the

the plaintiff's claim arose. The form plaintiff had set out in its complaint the en

which the plaintiff brought the present a tire trausaction between it and Mrs. Story,

tion is immaterial, as it might have tmata?

the defendant ds baving received the part beginning with the agreement, and the circunstances under wbich it was made, and

ceeds of the goods sold by her, and se! giving in detail her sale of the property to

her therefor. But, wbatever form of acties Bates, that its value was $38,550, and that

it might select, it was only entitled to me the proceeds thereof had been applied by

pensation for the goods, and, in a suit * her in payment of its debts, and also show

the taking, it could only receive the amer ing that in pursuance of said agreement she

in which it had been damaged. By its fate had paid the entire debts of the plaintiff,

ment with Mrs. Story, it bad approprize

! amounting to $113,000, it would then have this property to the payment of its obline appeared, upon the face of the complaint,

tion to her; and in the absence of any ist that the plaintiff was not entitled to recover ing or any claim by It that it has suferit from her the value of the property sold by

diminution of estate or damage besond her, without at the same time recompensing value of the property, if that value was ! her for the payments that she had made for propriated by her to the purpose to be Its account. If, on the other hand, Mrs. the parties had agreed it should be aprins Story had brought an action against the priated, it cannot claim any further ( plaintiff for the amount of money paid by her pensation from her. By its agreement under the agreement, the plaintiff would her, it placed itself under an obligativa e have had the right to deduct from that her for the payment of all the more amount the value of the property sold by which she should advance for its debts; ! her, and it would not have lain in her mouth as the court finds that she has paid themets to say that she was a trespasser, and there the sum of $113,000, it can only daim fore not liable to have her tort set off against the value of the property sold by her be at the contract of the plaintiff. But the rights ducted from that amount. By treating to of the several parties to plead a counter goods as the property of the defendant

, as claim in defense to an action by one against suing merely for their value, the platit the other for a breach of their respective ob | has elected to treat the obligation as ligations arising out of the facts in contro fixed value, and it is immaterial in this versy between them must be reciprocal. The form it stated its cause of action. In entire transaction between them, and the

case, it would be competent for Us S rights resulting therefrom, are to be deter to show that by rirtue of the agreement * mined by the court; and it is incumbent up tween them the property had been subject on the court, after hearing all the proof rela to the payment of the plaintiff's obligats dive to that transaction, to render such judg to her, and that she had made such spalis

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