1

Marshall. Ferguson.

The crops contracted for in this case are the product of periodical planting and cultivation, and the law appears to be well settled, both in the English and American Courts, that sales of growing crops of that character do not come within the provision of the Statute of Frauds relating to sales of an interest in real estate, and therefore such sales, though not in writing, are valid. (Browne on Stat. of Frauds, Secs. 250-258; Green v. Armstrong, 1 Denio, 550; Smith v. Bryan, 5 Maryland, 141; Safford v. Annis, 7 Maine, 168; Bostwick v. Leach, 3 Day, 476.) The objection that the sale was of an interest in real estate, and must be in writing, is therefore untenable.

The next point is, that as a sale of goods and chattels it was void for want of delivery and a written memorandum of the sale. The fact that defendant sold the crops to other parties was a sufficient delivery within the statute. (Browne on Stat. of Frauds, Sec. 322; Chaplin v. Rogers, 1 East. 192.)

There was sufficient evidence of plaintiff's title to the crops, and his right to sell them. Even if there had been a defect of proof on this point, the defendant could not avail himself of it after he had sold the property and received the pay therefor.

The next question is, was it necessary for the plaintiff to demand of the defendant the grain he agreed to deliver for the growing crops before commencing suit? The defendant agreed to pay the six hundred and fifty dollars in grain at the market price, on the first day of October, 1862. It was not an agreement to deliver any specific parcel or quantity of grain, but he was to deliver a sufficient quantity which at the market price would amount to the sum of six hundred and fifty dollars. It is to be observed, too, that the time of delivery was fixed. The grain was not to be delivered on demand, but on a certain day that was named. Under these circumstances it was the duty of the defendant to deliver the grain, on or before the day named, to the plaintiff, and his failure to do so made him liable to pay the sum named in money. After the day named, the plaintiff was under no obligation to receive payment in grain, and no demand of the grain by him was necessary. (Goodwin v. Holbrook, 4 Wend. 377; Peck v. Hubbard, 11 Vermont, 612; Townsend v. Wells, 3 Day, 327; 2 Parsons on Contracts, 163.)

Riley. Pehl.

It is further objected that the proof varied from the allegations of the complaint. This objection would have been good had the defendant made it at the proper time, which was when the evidence was introduced. The case made by the proof differs from the averments of the complaint in almost every essential particular; and if the defendant had objected to its introduction it would have been the duty of the Court to have excluded it until the pleadings had been made to conform to the real facts of the case. But the defendant made no objection on this ground, either at the time of the introduction of the evidence or at any other time, in the Court below, nor is it included in his grounds of appeal or assignments of error filed in this Court. Under these circumstances we cannot entertain this question. It is too late to present it here for the first time; for if it had been suggested in the Court below at the proper time, the Court might have allowed the plaintiff to amend his complaint, so as to make it conform to the proof.

The last point raised is, that the action was tried by the Court, who filed no findings in the case. Sec. 2 of the Statute of 1861, page 589, provides that, "In cases tried by the Court, without a jury, no judgment shall be reversed for the want of a finding, or for a defective finding of the facts, unless exceptions be made in the Court below to the finding, or to the want of a finding." No exception was taken by the defendant for want of a finding, nor did he ask or require the Court to file any findings in the case. It comes clearly within the provisions of this statute, and this Court cannot, therefore, reverse the judgment on that ground.

We have examined all the questions presented by the appellant, and find no valid ground for reversing the judgment, and it is therefore affirmed.

RILEY v. PEHL AND WIFE.

WHERE a homestead right had been acquired prior to the passage of the amendment to the Homestead Law in 1860, a declaration of homestead could be made and recorded at any time prior to June 1st, 1862, and no right of homestead was lost by a failure to make the declaration before that time.

Riley v. Pehl.

Where property is conveyed to a wife and the deed shows upon its face a consideration paid, it becomes the common property of both husband and wife,

and not the separate property of the wife.

Query - Can the separate property of the wife become the homestead?

Where a homestead is sold by the Sheriff on an execution against the husband, or husband and wife, and a deed given to the purchaser therefor, it is a cloud upon the title, and a Court of Equity will remove it.

APPEAL from the Fourth Judicial District, Contra Costa County.

The facts are stated in the opinion of the Court.

M. S. Chuse, for Appellants.

The deed to the wife expresses a money consideration. The demanded premises then, whether considered as conveyed directly to the husband as the prior grantee or as conveyed to the wife, were by the statute and uniform adjudications upon the subject common property. (See Husband and Wife, Dig. Art. 2606; Tryson v. Sutton, 13 Cal. 493; Pixley v. Huggins, 15 Id. 127; Mott v. Smith, 16 Id. 557; Myer v. Keizer, 12 Id. 253.)

As common property it was susceptible of homestead dedication. (Homestead Act 1851, Sec. 1; Taylor v. Harguos, 4 Cal. 273.)

It is contended on the part of the respondent that the homestead claim is waived by the acts of the defendant's wife, and that the husband is "estopped" from any assertion of the claim by reason of the wife having filed her declaration of intention to do business as a sole trader, and having filed also an inventory in which she sets forth as part of her separate property the demanded premises.

1st. As to the wife's rights as affected by these acts, under the Sole Trader Act (Wood's Dig. 490, Sec. 3) it is provided that such sole trader "shall be allowed all the privileges and be liable to all legal processes now or hereafter provided by law against debtors and creditors."

Now were the husband a trader, doing business on the credit of his ownership of this very property (the demanded premises), could it be contended that he could not claim the same as a homestead, and as exempt from a judgment debt contracted, it may be, on the faith of such ownership? If so, surely the wife as a trader on her own account cannot stand in a more unfavorable position as to her

Riley v. Pehl.

claim of homestead. There was no estoppel as to husband or wife. (See doctrine of estoppel in Boggs v. Merced Mining Co., 14 Cal. 367; affirmed in Green v. Prettyman, 17 Id. 401; see, also, Ferris v. Coover, 10 Id. 631.)

The Sheriff's deed to plaintiff was a cloud upon defendant's title to homestead in the demanded premises, for it required evidence, aliunde, the record to defeat recovery based on the deed. (Pixley v. Huggins, 15 Cal. 127; Dunn v. Tozer, 10 Id. 172; Dorsey v. McFarland, 7 Id. 346.)

Thomas A. Brown, for Respondent.

The homestead declaration made by Mrs. Pehl on the sixteenth of February, after the Sheriff's sale, cannot defeat the plaintiff. Defendants' title to the homestead, if any they had at the time of the sale, they held under the Homestead Act of 1851. (Cohen v. Davis, 20 Cal. 194; Farmer v. Sampson, 6 Texas, 310.) The defendants are by their acts and declarations estopped from denying that the lots of land in controversy at the time of the levy and sale by the Sheriff, were the separate property of the defendant Sarah Pehl, and as such, liable for debts contracted by her as scle trader.

The third section of the act defining the rights of Husband and Wife (Wood's Dig. 487), provides, that: "A full and complete inventory of the separate property of the wife shall be made out and signed by the wife and acknowledged or proved, in the manner required by the law for the acknowledgment of proof of conveyances of land, and recorded in the office of the Recorder of the county in which the parties reside;" and section five of the same act provides, that the filing of the inventory in the Recorder's office shall be notice of title of the wife, and all property belonging to her included in the inventory shall be exempt from seizure on execution for the debts of her husband.

The inventory of her separate property, filed and recorded by the defendant Sarah Pehl, was intended to and did impart notice to all persons, that the property described therein was her separate property, and was not liable for her husband's debts. The law will hold her responsible for the truth of the statements made and con.

Riley v. Pehl.

tained in her inventory, in respect to her title to the property in controversy, whether those statements be true or false. She will not be permitted to record her statement for her own protection, and when convenient, deny its truth. (Cowen & Hill's Notes to 3 Philips' Ev., Part 1, 369; 1 Greenl. Ev. 22, 207, 208; Mitchell v. Reed, 9 Cal. 206; Hostetter v. Hays, 3 Id. 307; Cravens v. Booth, 8 Texas, 249; Bien et al. v. Heath, 6 How. 247; 1 Story's Eq. Jur. Sec. 385.)

The defendant William Pehl, is in no better condition. His wife was doing business as sole trader with his consent. She had assumed to act in his place with his permission, and the presumption is, from his relation towards her, that he knew better than any other person what she was doing.

Thomas A. Brown, for Respondent.

CROCKER, J. delivered the opinion of the Court-COPE, C. J. and NORTON, J. concurring.

This is an action to recover the possession of two village lots, claimed by the defendants as a homestead. The wife filed her declaration as a sole trader on the fifth day of December, 1859, and on the second day of August, 1860, the plaintiff commenced an action against her, as such sole trader, and her husband, in which the property claimed as a homestead was attached. He afterward obtained judgment in the action, on which an execution duly issued, under which the property was sold and purchased by the plaintiff on the nineteenth day of January, 1861, and in due time he received a deed from the Sheriff therefor. Notice of the homestead claim appears to have been served on the Sheriff after the levy under the execution, and before the sale of the property. On the sixteenth day of February, and after the Sheriff's sale, the wife filed a declaration of homestead in the Recorder's office. The defendants had occupied the premises as a homestead for some time prior to any of these dates, and have so continued to occupy them ever since. The Court found for the plaintiff, and judgment was rendered accordingly, from which the defendants appeal.

The homestead right in this case was acquired by the defendants