Garoutte, J.
This is an appeal from a judgment in favor of plaintiff in an action to recover a deposit made [292]*292on a sale of real estate situate in the city and county of San Francisco, the plaintiff claiming the title to be defective. The condition of defendants’ title to the tract of land is the only question involved.
In the case of Turner v. McDonald, 76 Cal. 177, this court said: “A perfect title must be one that is good and valid beyond all reasonable doubt and in that case it was conceded by counsel upon both sides that a title, to be good, “ should be free from litigation, palpable defects, and grave doubts, should consist of both legal and equitable titles, and should be fairly deducible of record.” It would seem, in fairness to the vendee, that the foregoing requirements should be held absolutely necessary, in order. to fully satisfy the covenant of perfect title. Certainly such a condition of title must exist before it can be said to be good and valid beyond reasonable doubt. (See Reynolds v. Borel, 86 Cal. 538; Richmond v. Gray, 3 Allen, 27; Sturtevant v. Jaques, 14 Allen, 526.)
While the record here is silent as to the fact, we will assume that upon the fifteenth day of December, 1874, the legal and record title to this tract of land was vested in George Styles. Upon that day he filed a homestead upon the property in all respects in conformity with law, setting forth, among other things, that he resided upon the property with his family, consisting of Jane Styles, his wife, and three children, and that said property was community property. Upon March 28, 1879, he died. Upon November 4, 1880, the widow petitioned to have the property set apart as a homestead for the use of the family. The court set it apart as a homestead for the use of the family, consisting of Jane Styles, widow, and George, Robert, and William Styles, minor children. One Samson was appointed guardian of the estates of the said minors, and returned, in an inventory and appraisement, an undivided one half of said property as the estate of said minors, and upon proceedings in the probate court said property of the minors was sold to defendant Kate Miles, who at the same time received a [293]*293deed of bargain and sale to all of said property from said Jane Styles. It is insisted by respondent, and was so found by the court, that by reason of the order setting aside the property as a homestead for the use of the family, the widow and children took thereof in equal shares, and that consequently the title to an undivided one-fourth interest in said property still remains in said minors, the guardian’s deed to defendant Kate Miles only purporting to convey an undivided one-half interest thereof. In 1880, at the time the order of the probate court was made setting aside this property for the use of the family, section 1468 of the Code of Civil Procedure read as follows: “ When property is set apart for the use of the family, such property shall be for the benefit of the several parties, as provided in section 1465 of this code.” Prior to April, 1880, this section provided that the widow should take one half of the property set apart, and the minor children one half. At the session of the legislature of 1881 the section was again changed, so as to read practically as it did prior to the provision of 1880. We must assume that the legislature meant something by the varied and repeated legislation with reference to this section of the code. If the quantum of this homestead property which was to pass respectively to the widow and minor children under the law as it stood in 1879 was not changed by the amendment of 1880, why the change in the law? Why idle and useless legislation? And again, why did the legislature in 1881 return to the old law? This question as to the vesting of the title to the homestead was the only subject of legislation involved in the section during all these changes, and the amendments at these various times were so substantial as to amount to repeals of the section as it previously stood. It would seem that, under the section as quoted, the widow and minor children took equal shares in this property as tenants in common: This is its intent, or it has no meaning whatever. “ When parties take title and hold as tenants in common, each will be deemed to hold an equal share, there [294]*294being nothing to indicate to the contrary.” (Hardenbergh v. Bacon, 33 Cal. 378.)
In this decree there is nothing to indicate to the contrary. The section of the code is absolutely silent upon the question, and we conclude the legislative intent must be held to have been that the minor children should share equally with the widow. ■ Consequently, if these probate proceedings were valid, and any title whatever to this property vested in these minors by reason thereof, then an undivided three fourths vested, and they still remain possessed of the title to an undivided one fourth thereof.
Appellants insist that as Styles died in 1879, the property being community, one half vested immediately in the widow, and one half in the children, subject to be set apart as a homestead under the law as it stood at the time of his death, and that section 1468 as amended in 1880, if applicable to this case, would deprive the widow of vested rights. As the homestead law in existence at the time of Styles’s death was repealed by the law of 1880, this reasoning would force us to the conclusion that no homestead whatever could be set apart out of this property. In Estate of Boland, 43 Cal. 642, the court said: “ The right of Margaret Lane to have a homestead set apart to her from the estate of her former husband, John Boland, must therefore be determined from the facts as they existed on the 3d of January, 1870, when the order of the probate court was made.” And in Sulzberger v. Sulzberger, 50 Cal. 388, the court said: “ The homestead is to be set apart in pursuance of the statute in force at the time when the order is made, and the interest therein which the widow and the surviving child will take is to be determined by the same statute.” In this case it was also decided that the right to have a homestead set apart out of the testator’s separate property was paramount to his right to devise the property. We conclude, therefore, that the order of the probate court setting aside this property as a homestead, under section 1468 of the Code of Civil Procedure as it existed [295]*295at the date of the order, did not give that provision a retroactive effect, and interfered with no vested rights of the widow. It follows, that unless Jane Styles, the widow, by right of survivorship, under her recorded homestead, became the owner in fee of this entire property, that title to a one-fourth interest thereof is still outstanding in the minor children.
It is settled law in this state that on the death of the husband, the community property upon which a homestead exists vests absolutely in the widow; and in the case of Watson v. His Creditors, 58 Cal. 556, it was held that the court had no power to make a decree setting the property apart for the use of the family when such a homestead existed, and that the effect of such a decree, no matter how broad its language, is simply to take the property out of administration.
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Garoutte, J.
This is an appeal from a judgment in favor of plaintiff in an action to recover a deposit made [292]*292on a sale of real estate situate in the city and county of San Francisco, the plaintiff claiming the title to be defective. The condition of defendants’ title to the tract of land is the only question involved.
In the case of Turner v. McDonald, 76 Cal. 177, this court said: “A perfect title must be one that is good and valid beyond all reasonable doubt and in that case it was conceded by counsel upon both sides that a title, to be good, “ should be free from litigation, palpable defects, and grave doubts, should consist of both legal and equitable titles, and should be fairly deducible of record.” It would seem, in fairness to the vendee, that the foregoing requirements should be held absolutely necessary, in order. to fully satisfy the covenant of perfect title. Certainly such a condition of title must exist before it can be said to be good and valid beyond reasonable doubt. (See Reynolds v. Borel, 86 Cal. 538; Richmond v. Gray, 3 Allen, 27; Sturtevant v. Jaques, 14 Allen, 526.)
While the record here is silent as to the fact, we will assume that upon the fifteenth day of December, 1874, the legal and record title to this tract of land was vested in George Styles. Upon that day he filed a homestead upon the property in all respects in conformity with law, setting forth, among other things, that he resided upon the property with his family, consisting of Jane Styles, his wife, and three children, and that said property was community property. Upon March 28, 1879, he died. Upon November 4, 1880, the widow petitioned to have the property set apart as a homestead for the use of the family. The court set it apart as a homestead for the use of the family, consisting of Jane Styles, widow, and George, Robert, and William Styles, minor children. One Samson was appointed guardian of the estates of the said minors, and returned, in an inventory and appraisement, an undivided one half of said property as the estate of said minors, and upon proceedings in the probate court said property of the minors was sold to defendant Kate Miles, who at the same time received a [293]*293deed of bargain and sale to all of said property from said Jane Styles. It is insisted by respondent, and was so found by the court, that by reason of the order setting aside the property as a homestead for the use of the family, the widow and children took thereof in equal shares, and that consequently the title to an undivided one-fourth interest in said property still remains in said minors, the guardian’s deed to defendant Kate Miles only purporting to convey an undivided one-half interest thereof. In 1880, at the time the order of the probate court was made setting aside this property for the use of the family, section 1468 of the Code of Civil Procedure read as follows: “ When property is set apart for the use of the family, such property shall be for the benefit of the several parties, as provided in section 1465 of this code.” Prior to April, 1880, this section provided that the widow should take one half of the property set apart, and the minor children one half. At the session of the legislature of 1881 the section was again changed, so as to read practically as it did prior to the provision of 1880. We must assume that the legislature meant something by the varied and repeated legislation with reference to this section of the code. If the quantum of this homestead property which was to pass respectively to the widow and minor children under the law as it stood in 1879 was not changed by the amendment of 1880, why the change in the law? Why idle and useless legislation? And again, why did the legislature in 1881 return to the old law? This question as to the vesting of the title to the homestead was the only subject of legislation involved in the section during all these changes, and the amendments at these various times were so substantial as to amount to repeals of the section as it previously stood. It would seem that, under the section as quoted, the widow and minor children took equal shares in this property as tenants in common: This is its intent, or it has no meaning whatever. “ When parties take title and hold as tenants in common, each will be deemed to hold an equal share, there [294]*294being nothing to indicate to the contrary.” (Hardenbergh v. Bacon, 33 Cal. 378.)
In this decree there is nothing to indicate to the contrary. The section of the code is absolutely silent upon the question, and we conclude the legislative intent must be held to have been that the minor children should share equally with the widow. ■ Consequently, if these probate proceedings were valid, and any title whatever to this property vested in these minors by reason thereof, then an undivided three fourths vested, and they still remain possessed of the title to an undivided one fourth thereof.
Appellants insist that as Styles died in 1879, the property being community, one half vested immediately in the widow, and one half in the children, subject to be set apart as a homestead under the law as it stood at the time of his death, and that section 1468 as amended in 1880, if applicable to this case, would deprive the widow of vested rights. As the homestead law in existence at the time of Styles’s death was repealed by the law of 1880, this reasoning would force us to the conclusion that no homestead whatever could be set apart out of this property. In Estate of Boland, 43 Cal. 642, the court said: “ The right of Margaret Lane to have a homestead set apart to her from the estate of her former husband, John Boland, must therefore be determined from the facts as they existed on the 3d of January, 1870, when the order of the probate court was made.” And in Sulzberger v. Sulzberger, 50 Cal. 388, the court said: “ The homestead is to be set apart in pursuance of the statute in force at the time when the order is made, and the interest therein which the widow and the surviving child will take is to be determined by the same statute.” In this case it was also decided that the right to have a homestead set apart out of the testator’s separate property was paramount to his right to devise the property. We conclude, therefore, that the order of the probate court setting aside this property as a homestead, under section 1468 of the Code of Civil Procedure as it existed [295]*295at the date of the order, did not give that provision a retroactive effect, and interfered with no vested rights of the widow. It follows, that unless Jane Styles, the widow, by right of survivorship, under her recorded homestead, became the owner in fee of this entire property, that title to a one-fourth interest thereof is still outstanding in the minor children.
It is settled law in this state that on the death of the husband, the community property upon which a homestead exists vests absolutely in the widow; and in the case of Watson v. His Creditors, 58 Cal. 556, it was held that the court had no power to make a decree setting the property apart for the use of the family when such a homestead existed, and that the effect of such a decree, no matter how broad its language, is simply to take the property out of administration. This principle is supported by many authorities, and is undoubtedly the true rule; but these decisions are founded upon the previous determination of the court, that a valid recorded homestead upon community property is in full life at the date of such decree; and in this case there was no record, official or otherwise, to bring home to the vendee knowledge of any such state of facts. To be sure, the trial court found that this property was community property, and that Styles and his wife resided upon it at the date of the homestead, and that the homestead had not been abandoned, and that Styles died in 1879; but we cannot see how these findings of the court, tending to show that this homestead was a valid homestead such as would vest the title in fee in the widow upon the death of said Styles, would indicate a good and perfect title to Sheehy, the plaintiff in this action, at a period months previous to the time when these findings were made. All the plaintiff knew about the status of the title to this property was from the recorded homestead; the recitals therein filled the full measure required by the statute, but they were not binding on third parties, for their truth could be assailed by any person having an interest in setting aside the homestead. The vendee is [296]*296not required to rely upon the word of mouth of the vendor that he has good title: the title must be produced before him in some tangible form, in order that it may be measured and weighed.
In this case the recitals in the homestead were not evidence to the vendee that the title was good, neither was he compelled to go out into the world upon an exploring expedition, and by an examination of witnesses determine, and perchance determine wrongly, the existence of those facts that were necessary to exist in order that Jane Styles, the widow, may have acquired this property by right of survivorship, to wit, that it was community property; that Styles and his wife resided upon the property with their children at the time the homestead was declared and recorded; that it had not been abandoned; that it was not void by reason of a previous homestead having been declared; that Styles was dead, etc. Under this agreement, which contains a covenant of perfect title, when considered in connection with the condition and appearance of this title as it is presented to us, if this were an action for specific performance, it would seem no court of equity would compel the vendee to pay ten thousand dollars for this tract of land. In addition to these matters, which are presented from a consideration of the record homestead, the vendee was confronted with this probate homestead, and the proceedings pertaining to the sale of the various interests derived therefrom. As we have seen, those authorities holding that decrees of the court setting aside probate homesteads from property upon which recorded homesteads rested were void and of no effect gave the vendee in this case no light as to the condition of this title; for he possessed no knowledge, and was not required to go forth seeking knowledge as to whether or not this recorded homestead was such as to vest title in the widow upon the death of Styles. The inference more properly to be drawn from this action of the court in setting aside the probate homestead would be that the court would not do an idle thing by making a useless [297]*297decree, and that from some cause shown at that time the recorded homestead was adjudged void, and that this decree was a valid decree made by the court to preserve the property to the use and benefit of the family as best it could. For the foregoing reasons, we conclude that appellants’ title to this realty was not free from palpable defects and grave doubts, was not fairly deducible of record, and was not a good and valid title beyond reasonable doubt.
Let the judgment be affirmed.
Paterson, J., concurred.