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a demonstration. The sale was not made to pay debts; its object is distinctly stated.

Again, the petition states that the real estate consists of three parcels, giving the acreage of each; the two first being farming lands, and having on one of them the dwelling-house and improvements, and the third being swamp land, and the appraisers so report, and the court so finds; yet the court finds and adjudges that these separate parcels could not be divided. Were it not for the allegation of the petition, and the statement in the findings, we might be bound by the findings of the court that they could not be divided; but with the allegation of the petitions and the facts as found, we cannot see how the conclusion at which the court arrived could have been supported by the evidence. It seems to us that the only bond between the three parcels is the mortgage over all, which is not a controlling element in making a homestead selection. A proper course for the court below to have taken would have been to proceed on the first petition to set apart a homestead out of or embracing the common property, which would have been subject to the mortgage; and the widow would then have been in condition to ask a sale of the balance of the property, and the application of the proceeds to the payment of the mortgage, under section 1475, Code Civil Proc., or, in case of foreclosure, to ask that the mortgaged property not set apart be first sold, and the proceeds applied, leaving the homestead liable for the balance only.

We suggest (and this is a suggestion merely) that, as the estate is still in process of administration, the court below may save the rights of the parties, including the purchasers, by setting aside all proceedings subsequent to the first petition, and let the money paid by the purchasers be returned, and then proceed to set aside a homestead according to law.

The proceedings in this case were taken under section 1465, Code Civil Proc., as amended in 1880. This section received a legislative construction in harmony with the views we have above expressed, by the amendment of section 1468, approved February 19, 1881, wherein it is provided that where separate property is set apart, it is set apart for a limited period only, the title vesting in the heirs subject to the order setting apart.

The order is reversed, and the cause is remanded for proceedings not inconsistent with this opinion.

We concur: SHARPSTEIN, J.; THORNTON, J.

(65 Cal. 89)

BROWN, Adm'r, v. MULLIN.

Filed February 26, 1884.

The finding is not sustained by the evidence, and the cause remanded for a new trial.

Department 2.

Belcher & Belcher, for respondent.

C. W. Cross, for appellant.

THORNTON, J. Whether China ravine had flowing in it, for more than eight years prior to the trial of this cause, a stream of natural water, is in our opinion immaterial, inasmuch as the defendant had ever since 1865 appropriated the waters of the ravine, and had partly used it for irrigation and partly sold it to be used, up to the time of the appropriation claimed to have been made by O'Connor, the intestate of plaintiff. This last appropriation did not take place earlier than 1873, and did not extend beyond the water which then flowed back into the ravine from the irrigation by defendant, or was suffered at that time to escape and flow in the ravine by defendant. In other words, it only extended to the water suffered to go to waste by defendant, as above stated. It is not claimed that this water ever exceeded forty inches -some times during the season it was less than five inches. The court found that the defendant was not the owner, or entitled to the use, of any natural water flowing down China ravine since 1878, when the quantity thereof was less than forty inches, measured under a six-inch pressure, when the same was used or wanted by plaintiff; and that plaintiff was the owner of said forty inches. The evidence. did not sustain the finding. The right of plaintiff does not exceed what is indicated above. For this reason the order denying the new trial is reversed and the cause remanded.

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A finding of fact by the lower court on conflicting evidence will not be disturbed. An objection to testimony, as to the declarations of the plaintiff on the ground that it is not the best evidence, should not be sustained.

An error not prejudicial to the party objecting thereto is not ground for reversal.

Department 2.

C. G. Kelley, for appellant.

C. M. McCloskey, for respondent.

SHARPSTEIN, J. The plaintiff gave to the defendant an agreement in writing, of which the following is a copy:

"I hereby agree that H. G. Fitzell may take a fourth or fifth interest in the ditch-right he has this day conveyed to me, by being at his proportion of the expense on said ditch down to and through his lands.

"June 20, 1883.

G. F. KELLEY.”

On behalf of plaintiff it is contended that this was simply a proposition which respondent never accepted. But the evidence on this point is conflicting. That introduced by respondent tended to prove that he did accept it, and aided in the construction of the ditch. Under these circumstances we cannot disturb the finding of the court below on that question.

On the trial the wife of plaintiff was called by him as a witness, and asked to state a conversation between her husband and defendant-to state all of the conversation. Defendant's counsel objected to her stating what plaintiff said as not the best evidence. The court sustained the objection, and plaintiff excepted. The court then told the witness to state only what respondent said to plaintiff, whereupon the witness said: "I heard the defendant (Mr. Fitzell) tell Mr. Kelley (plaintiff) that he would not take any interest in the ditch; that he had not got the money to pay out on it; but that he would work on the ditch for Mr. Kelley, (plaintiff,) and take his pay in water; that was about the middle of October, 1880." While we do not doubt that the court erred in sustaining the above-mentioned objection, we cannot see how the plaintiff could be prejudiced by it. His witness testified to a declaration or avowal of defendant that he would not take any interest in the ditch, and that was all plaintiff was trying to prove. Nothing which the plaintiff could have said at the time. would add any force or weight to this evidence. The declaration or avowal of defendant, as testified to, was clear and explicit. It could not be made more so by anything which the plaintiff could have said. Judgment and order affirmed.

We concur: MYRICK, J.; THORNTON, J.

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Appeal dismissed; previous appeal from same judgment being perfected.

Department 1. BY THE COURT. This is an appeal by the people from a judgment or order in favor of defendant on a demurrer to the indictment. Penal Code, 1238. The notice of appeal was served and filed on the tenth day of November, 1883. If the judgment or order was appealable the people had perfected an appeal from the same on the twentysixth day of October, 1883.

The appeal must therefore be dismissed.

(65 Cal. 93)

STOCKTON BUILDING & LOAN ASS'N v. CHALMERS and others.

Filed February 26, 1884.

The intestate having merely occupied, without pre-empting, the land in question, homestead proceedings could only operate upon such right as he had at his death; such proceedings could not affect a mortgage afterwards given by one who pre-empted the land, and where neither he nor the mortgagee knew of the rights claimed under the homestead proceedings.

In bank.

Irwin & Carpenter, for appellants.

Geo. G. Blanchard and W. L. Dudley, for respondent.

MYRICK, J. This is an action to foreclose a mortgage executed by one Robert Chalmers in his life-time. His executor and executrix and a junior mortgagee were made defendants. Joseph and Martin Alhoff are intervenors, and, the court having rendered judgment against them, and directed a sale of the mortgaged premises, they have appealed. The intervention is based upon the following facts: In 1855 one M. Alhoff went into the occupation of a small tract of unsurveyed government land, and thence resided thereon, with his family, until his death. He extended his possessions so as to embrace some 22 or 23 acres, planted a vineyard, built a house, wine cellar, and distillery. He was qualified to pre-empt, but took no steps in that direction other than to occupy the land. He died in 1867, leaving him surviving a widow (Louisa M.) and two sons (the intervenors.) In that year (1867) the place was set apart, by the probate court, to the widow and two sons as a homestead, and they continued to reside on the premises until July, 1869, when the said Louisa M. intermarried with Robert Chalmers, and she reinoved, with her sons, to the

house of said Chalmers, on the other side of the road dividing the Chalmers place from the Alhoff place. In May, 1869, said Chalmers had been appointed guardian of the persons and estates of the two boys, and received letters; but he filed no inventory or report. The United States survey of the land was completed July 31, 1871. In 1871 or 1872, Robert Chalmers filed a pre-emption claim, which empraced his residence on the east side of the road, as well as the east 9 13-100 acres of the Alhoff place, and in August, 1873, he received a United States patent for the same. On the twenty-seventh of September, 1874, said Chalmers deeded to Louisa M. and the two boys the westerly 13 19-100 acres of the Alhoff place, retaining the title to the easterly 9 13-100 acres on which were located the dwelling, barn, and a portion of the wine cellar. On the same day he executed the mortgage in suit, which embraced the easterly 9 13-100 acres and his own residence, with other property, but did not embrace the westerly 13 19-100 acres. In January, 1879, sald Chalmers moved to the Alhoff house, and resided there until his death, in. 1881.

In March, 1879, said Robert Chalmers executed the second mortgage to his son, the defendant Hugh Chalmers. The intervenors attained majority, respectively, Joseph on the seventeenth of September, 1878, and Martin on the twenty-first of November, 1879.

The intervenors claim that by virtue of the homestead proceedings in the Alhoff estate they became tenants in common with their mother in the ownership of the premises; that when Chalmers acquired the title from the United States government he acquired it for them, and thence held in trust for them; and that the possession by their father and the setting apart by the probate court imparted to the plaintiff sufficient notice to put it upon inquiry, and that it is not an incumbrancer in good faith without notice. We do not think the homestead proceedings in any manner affect the mortgage. Those proceedings operated only upon whatever right the intestate had at the time of his death. The court found that neither the plaintiff nor those through or from whom it acquired the note and mortgage. had any knowledge of the alleged right or title of the intervenors prior to the commencement of this action. There is evidence sufficient to sustain this finding.

The judgment and order are affirmed.

We concur: SHARPSTEIN, J.; THORNTON, J.; McKINSTRY, J.; Ross, J.; MORRISON, C. J.

(2 Cal. Unrep. 272)

PEOPLE ex rel. v. BLAKE.

Filed February 28, 1884.

The finding that the defendants neither have nor had any title to the land is sustained by the evidence, and, this being so, it is immaterial to them who the owners were who dedicated it for a street, and they cannot object that there is no finding by the court, as to who such owners were.

In bank.

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