McHarry v. Stewart

Citations

• 4 Cal. Unrep. 408
• 35 P. 141
• 1893 Cal. LEXIS 1103

Syllabus

<p>Homestead—Right of Widow to Convey Homestead.—Code of Civil Procedure, section 1468, provides that, if deceased left also a minor child or children, one-half the real estate of which deceased died seised shall “belong” to his widow and the remainder to the child or children. Section 1485 provides that persons succeeding to the title of “successors to homesteads” have all the rights of the persons whose interests they acquire. Held, that a wife, having minor children by a former, deceased husband, could convey to her second husband a certain sixty acres of one hundred and seventy-five acres of land which were set apart to her and her children as a homestead out of the lands of her deceased husband.</p> <p>Public Land—Homestead—Partition.—Code of Civil Procedure, Section 764, provides that when it appears, in an action of partition, that one or more of the tenants in common has conveyed in fee to another person a specific part of the common land, the land so conveyed shall be allotted in partition to such purchaser, etc., if such tract can be so allotted without material injury to the other cotenants. Held, that such purchaser’s right to file upon an, “adjoining farm homestead” under Revised Statutes of the United States, sections 2289, 2290, cannot be defeated by the possibility that, on the partition, other land not adjoining that filed upon may be allotted him, instead of the specific part conveyed to him.</p> <p>Public Land—Determination of Pre-emption Rights.—Revised Statutes of the United States, section 2273, provides that all questions as to the right of pre-emption, arising between different settlers, shall be determined by the register and receiver of the district within which the land is situated, and for “appeals from the decision of the district officers.” Held, that, in the absence of any statute limiting the power of the commissioner of the land office and Secretary of the Interior on appeal, the power will not be denied to the commissioner and secre