McKinnie v. Shaffer

16 P. 509, 74 Cal. 614, 1888 Cal. LEXIS 807

Opinion

Thornton, J.

The demurrer to the complaint was properly overruled. We see no reason why a party owning a homestead is not entitled to have his or her title, to it quieted against the claims of others. Whatever interest the plaintiff has may be quieted. If a title in fee, such interest may be quieted; if a less interest, the less interest may be likewise quieted. Such we understand to be the rulings of this court. (Stoddard v. Burge, 53 Cal. 394; Pierce v. Felter, 53 Cal. 18.)

We will say further that under the statute as it stood in 1879, when the order setting apart the homestead was made, the decedent having left a widow and no minor child, and the property of which the homestead was set ■apart being community property, the homestead so set apart became the property of the widow, A. K. McKinnie. In other words, she became the owner in fee of the property thus set apart. (Code Civ. Proc., sec. 1468.) It having thus become her property, there was no necessity for calling in aid an adverse possession under the statute of limitations. We cannot see how a widow can acquire title to such property by adverse possession as against an heir. Conceding that an adverse possession by the widow is averred, if we reject such portion, the complaint still states facts constituting a cause of action.

Judgment affirmed.

Temple, J., Searls, C. J., McFarland, J., Paterson, J., Sharpstein, J., and McKinstry, J., concurred.