Upon principle and authority we think the sale of the land in controversy, under the execution issued in Porter v. Tyrrell, was void. We concur: BEATTY, C. J.; WORKS, J. (78 Cal. 493) POTTER v. FowZER, County Treasurer. (No. 11,768.) HIGHWAYS-TAXES AND ASSESSMENTS-AUTHORITY the alleged joint tenancy, but as property set | greater necessity for such protection after apart by law from her husband's estate for the death of one of the spouses than before. her benefit and that of his children, if there Thomp. Homest. & Ex. § 541. be any. In the same way, other property exempt from forced sale is set apart to her." The main object of the homestead laws is to protect the home of the wife and her children, to provide a refuge for them which The court did not find whether Tyrrell and cannot be invaded. This is the beneficent wife resided on the land up to the time of the feature, the humane character, of all laws on death of the latter, unless the finding that the subject, and the courts have held uni- they resided thereon at the time the declaraformly that they should receive as liberal tion was filed establishes the fact by presumpconstruction as can fairly be given to them tion. The findings, however, are as broad in favor of those for whose benefit the ex-as the issues, and there is no finding of abanemption was intended. "The death of one donment, either before or after the death of of the spouses does not alter in any way the the wife. Judgment and order affirmed. estate or title of the homestead. * * * The statute of Texas (similar to section 1465, Code Civil Proc.) provides that all property exempt from exécution (including the homestead) shall be set apart for the use of the widow and children. * * * Even if the probate court had not been by any law invested with authority to designate for the (Supreme Court of California. March 25, 1889.) use of the widow of the deceased the property which in his life-time had been exempt from execution, yet such property would in the possession of the widow be exempt from execution or forced sale. During the existence of the marriage the husband was the head of the family, but on its dissolution by death the surviving wife was placed in that position, and in such position she has all the incidents, rights, and privileges. The same of the husband on the death of the wife. The right of either as the head of the family to retain the property exempt from execution is perfect, and the right of one is entirely equivalent to that of the other, and is neither of a higher or lower, or different, but of the same, grade, nature, and force. *** They are co-equals in life, and at death the survivor, whether husband or wife, remains the head of the family." Smyth, Homest. § 331; Wood v. Wheeler, 7 Tex. 21. Under section 1465 of the Code of Civil Procedure the court has no discretion. It must set aside the homestead selected from the community property. Estate of Ballentine, 45 Cal. 696. This provision seems to support the theory that the homestead is preserved for the benefit of the surviving spouse and the children, stamped with the same quality that characterized it during the life-time of the deceased spouse. That section provides that "the court may [shall] of its own motion, or on petition therefor, set apart for the use of the surviving husband or BELCHER, C. C. This is an appeal from a wife, or, in case of his or her death, to the judgment awarding the petitioner a perempminor children of the decedent, all the prop- tory writ of mandate. The facts stated in erty exempt from execution, including the the petition are as follows: There was due homestead selected, designated, and record- to the petitioner, as road overseer of Round ed," etc. Here the quality of the exemption Valley road-district, in Mendocino county, is clearly impressed upon the homestead set the sum of $2,046.23 for work and labor done, aside. It would not be a homestead, it would and for money expended by him for the disbe wanting in the main feature which rec-trict during the quarter year ending June 30, ommends it to favor, if, upon the death of 1886. There was no money in the road-disthe head of the family, it were no longer pro-trict fund, and only $494.61 in the general tected by the law of exemption. There is road fund of the county. A tax of 40 cents. Pol. Code Cal. § 2645, provides that road overseers must take charge of highways in their respective districts. Section 251 provides that the board of supervisors may establish a general county road fund out of all the road tax collected, from which they may assist weak districts, but shall not create a debt on such districts in excess of the estimated receipts therefrom for the current year, and renders void all contracts in violation of the Code. Section 2652 provides for levying an annual poll-tax, part of which shall be apportioned to the general road fund. Section 2653 provides for levying a highway property tax, which must Section 2712 not exceed a certain percentage. authorizes the board of supervisors to pay a portion of the cost of constructing bridges out of the county general fund. Held, that the board of supervisors had no authority to order a claim of a road overseer, for labor done and money expended for his district, paid out of the county general fund, where it was not alleged that the claim was for building bridges, and the entire legal highway taxes for the year had been collected and exhausted, though the county government act, § to "transfer moneys from one fund to another, as the public interest may require." THORNTON, J., dissenting. Commissioners' decision. In bank. Appeal from superior court, Mendocino county; R. MCGARVEY, Judge. 25, subd. 20, authorizes the board of supervisors Petition for mandamus by E. R. Potter against James Fowzer, county treasurer. Writ granted, and defendant appeals. A. Yell and J. A. Cooper, for appellant. T. L. Carothers, for respondent. 20, § 25, of the county government act, boards of supervisors are given the power, under such limitations and restrictions as are prescribed by law, "to establish a salary fund, and also such other county funds as they may deem necessary for the proper transaction of the business of the county, and to transfer moneys from one fund to another as the public interest may require." on each $100 of taxable property in the coun- |2712 provides that "whenever it appears to ty was duly levied for the fiscal year ending the board of supervisors that any road-disJune 30, 1886, but that money had all been trict is or would be unreasonably burdened exhausted for road purposes. On the 9th of by the expense of constructing, or of the July, 1886, the board of supervisors of the maintenance and repair of any bridge, or the county, at a regular session, made an order purchase of toll-roads, they may, in their disthat the county treasurer transfer from the | cretion, cause a portion of the aggregate cost surplus remaining in the general fund of the or expense to be paid out of the general road county for the fiscal year ending June 30, fund of the county; or by vote of two-thirds 1886, to the Round Valley road-district fund of the board of supervisors said board may, the sum of $1,552.62, for the purpose of pay- in their discretion, order a portion of the ing the said indebtedness due the petitioner. cost of construction of bridges only to be Demand was made that the treasurer obey | paid out of the county general fund, as well the order of the board, and transfer the as the general road fund." By subdivision money, but he refused, and has ever since refused, to do so. This proceeding was then commenced to enforce obedience to the order. The defendant demurred to the petition on the ground that it did not state facts sufficient to show that petitioner was entitled to the relief demanded, or to any relief. The court overruled the demurrer, and thereupon, the defendant declining to answer, the judgment appealed from was entered. It is contended on behalf of appellant that, under the provisions of the Political Code, the board of supervisors had no power to make the order transferring the money, and that their action was therefore void. On the other hand, it is argued for respondent that subdivision 20, 25 of the county government act (St. 1883, p. 299) fully authorized the action of the board, and is controlling in the matter. Section 2645 of the Political Code provides that road overseers, pursuant to orders of the board of supervisors, must take charge of the highways within their respective districts, keep them clear from obstructions and in good repair, cause banks to be graded, bridges and cause ways to be made where necessary, keep the same in good repair, and renew them when destroyed. Section 2651 provides that the board of supervisors may anuually set apart from the property road tax, collected from all sources, a sum not exceeding 35 per cent. of the aggregate, for general county road purposes, to be known as the "general road fund of the county;" that from this fund, besides general road work for the county, the board may assist weak or impoverished districts, but shall have no power to create a debt on any district in excess of the estimated amount of receipts from said district for the current year. The section further provides that all contracts, authorizations, and liabilities made in violation of the provisions of the Code shall be absolutely void. Section 2652 provides for the annual levy on certain persons of $3 as a road poll-tax, and authorizes the board to apportion 35 per cent. of the amount collected to the general road fund. Section 2653 provides that the board of supervisors must each year, when they levy taxes for county purposes, also levy a property tax for highway purposes, "provided that said property tax for highway purposes shall not exceed the sum of 40 cents upon each $100 of assessable property in any one year." And section We concur: FOOTE, C.; HAYNE, C. It is clear from the foregoing provisions of the Code that all the money which can be used for road purposes, with a single exception, must come from the road poll-tax and a property tax of 40 cents on each $100 of assessable property, and that all contracts made and liabilities incurred in excess of the estimated receipts are void. In the excepted instance the supervisors are permitted by a twothirds vote to order a portion of the cost of constructing bridges to be paid out of the county general fund. But this case does not come within the exception. It is not alleged that any of the labor performed or money expended by the petitioner was for the construction of bridges, and, pleadings being construed most strongly against the pleader, it must be assumed that the alleged indebtedness was created in some other way. This being so, and, assuming the petitioner's claim to be valid, it is clear that the board of supervisors had no authority to pay it with money taken from the general fund, the rule being that public moneys can be used only for the purposes and in the manner prescribed by law. The only question then is, did the provision of the county government act relied upon by respondent authorize the board to transfer the money temporarily from the general fund to the road-district fund? We do not think it did. We see no conflict or inconsistency between that provision and the sections of the Code cited. They do not relate to the same subject. Under that provision the supervisors may establish county funds, and may transfer money from one fund to another, when required by the public interest; but it cannot be construed to authorize the transfer to a fund established by law, and expressly limited in the amount of its receipts. We therefore advise that the judgment be reversed and the cause remanded, with directions to dismiss the petition. PER CURIAM. For the reasons given in the foregoing opinion the judgment is reversed, and cause remanded, with directions to dismiss the petition. THORNTON, J., dissents. (78 Cal. 498) INSTRUCTIONS. appears to be some doubt in the mind of counsel whether the action is founded on fraud or negligence, and the elementary principles relating to each are learnedly discussed, and numerous authorities cited and quoted from at length. The appellant favors us with 23 printed pages on this question alone in his original brief, and his reply conFINNEY . CURTIS. (No. 12,207.) tains 14 additional pages on the same sub(Supreme Court of California. March 26, 1889.)ject. We desire to give to the arguments of ANIMAL-VICIOUS HORSE-ACTION FOR INJURIES-counsel a full and careful reading, but such a brief as this is wholly unnecessary and In an action for personal injuries, plaintiff alleg- burdensome. What we need for the proper ing that defendant, knowing his horse to be vicious, induced plaintiff to assist him in hitching the horse to a wagon by falsely stating that the horse was gentle, the court charged that if the defendant represented the horse to be gentle, and thus induced plaintiff to take hold of him, and if the horse was not gentle, and if plaintiff was injured without negligence on his part, then defendant was responsible for the injuries sustained by the vice of the horse. Held error, in making de fendant liable without reference to his knowledge of the viciousness of the horse, or to the intent with which the representation was made, and also as practically assuming that the horse was vicious. In bank. Appeal from superior court, San Joaquin county; J. G. SWINNERTON, Judge. Action by Michael Finney against Forrest D. Curtis for personal injuries. Judgment for plaintiff, and defendant appeals. Geo. M. Gill and S. D. Woods, for appellant. J C. Campbell and Terry, Campbell & Terry, for respondent. consideration of a case is a clear, brief statement of the points made, with a citation of authorities bearing directly upon them. Long quotations from authorities are unnec essary. We can read the original quite as conveniently Where the quotation contains a brief statement of the point relied upon it is proper, but not otherwise. We call attention here to what seems to be the growing tendency of attorneys to overburden us with long briefs to no purpose but to delay us in our work, and to weaken the presentation of their cases. The instruction is erroneous. It makes the defendant liable without reference to his knowledge of the vicious nature of the horse. The rule is well settled that the owner of an animal, not naturally vicious, is not liable for an injury done by such animal, unless it is affirmatively shown, not only that it was vicious, but that such WORKS, J. Action for damages for per-owner had knowledge of the fact. Shear. & sonal injuries done the plaintiff by defend- R. Neg. §§ 187, 188; 3 Suth. Dam. 53. This ant's horse. Trial by jury; verdict for plain- case differs from ordinary cases, in that the tiff for $3,500; judgment accordingly; mo- plaintiff was induced to put himself in a tion for new trial overruled; defendant ap- place of danger by the representation of the peals. The gist of the complaint is that the defendant that the horse was gentle. The defendant, knowing his horse to be vicious, defendant being the owner of the horse, he induced the plaintiff to assist him in an at- had a right to rely upon this statement, and tempt to hitch the horse to a wagon by falsely act upon it. But the instruction was erronestating to him that the horse was gentle; aus for another reason. It makes the dethat plaintiff did attempt to assist him, fendant liable without reference to the queswhereupon the horse became unmanageable, tion whether he had knowledge that the horse knocked the plaintiff down and trampled up- was vicious or not. The fact that the plainon him, breaking his leg, so that amputation tiff was injured by the horse does not prove became necessary. There was a demurrer to that the horse was vicious. The instruction the complaint, which was properly overruled. practically assumes this by the closing words: The answer denied all of the material allega- "Then the defendant is responsible for the tions of the complaint. Some questions are injury sustained by the vice of the horse." raised upon rulings relating to the admission The instruction is also objectionable for the and exclusion of evidence, but we have found reason that it makes the defendant liable for no material errors in any of these rulings. the representation that the horse was gentle The court, at the request of the plaintiff, without any reference to the intent with gave the following instruction: "The court which it was made. The defendant testifies instructs the jury that if they believe from that he told plaintiff the horse was gentle, the evidence that the defendant, Forrest Cur- and he did not need his assistance to hook tis, represented the horse which he had har-him to the wagon. nessed to be gentle, and by such representa- The only other question necessary for us tions induced the plaintiff to approach and to determine is as to the sufficiency of the take hold of the horse, and if they believed evidence to sustain the verdict. As to its that the horse was not gentle, and the plain-insufficiency we entertain no doubt. In ortiff was, without negligence on his part, injured by said horse, then the defendant is responsible for the injury sustained by the vice of the horse." The giving of this instruction is assigned as error. The question is elaborately discussed in the briefs. There der to support a verdict for the plaintiff it was necessary to show, either that the horse was of a vicious disposition, or that he was so negligently handled by the defendant as to cause the injury. Neither is shown. There is nothing in the evidence even tending to show that the horse had ever shown an evil | senting him as gentle, when, in fact, he was disposition before the time of the injury, or not gentle. The defendant was not liable that he had ever done so since up to the time unless, in addition to his representation conof the trial. It appears that the horse was trary to the fact, he either knew the repreyoung, and not broken to harness, which sentation to be false, or had no reasonable was known to plaintiff as well as defendant; ground for believing it to be true. Nor was that plaintiff attempted to assist the defend- the defendant liable, in my opinion, unless ant to put him to a wagon with another the representation was made for the purpose horse; that while plaintiff was at his head he of inducing the plaintiff to act as he did; and plunged, struck the plaintiff down, and the evidence is conflicting as to whether the trampled him under foot, breaking and defendant, at the time he made the statement mangling his leg, so that it had to be ampu- that the horse was gentle, told the plaintiff tated soon after. It does not appear that the that he desired his assistance, or desired him injury resulted from the negligence of either to keep away. the plaintiff or the defendant. The mere fact that the horse became unmanageable on the occasion of the injury does not show that he was vicious or generally unsafe, nor does it prove that the statement of the defendant that the horse was gentle was untrue. Kennedy v. Mayor, 73 N. Y. 365. So far as the evidence shows the statement made by the defendant that the horse was gentle may have been entirely true. If so, there is no ground upon which the verdict can be upheld. There are other questions argued in the briefs, but the conclusion we have reached renders it unnecessary to consider them. Judgment and order denying a new trial re versed, and cause remanded. THORNTON, J., (concurring.) I concur in the judgment on the ground that the court below erred in giving the instruction quoted and commented on in the opinion of Justice WORKS. The instruction makes the defendant responsible if to his knowledge the horse was gentle and free from vice, provided the jury find that the horse was not gentle. This is equivalent to holding that the defendant guarantied that the horse was gentle, and was therefore bound to indemnify the plaintiff for any damage which he suffered by the vicious act of the horse. If the defendant knew that the horse was not gentle, and represented to the plaintiff that he was, and the plaintiff, relying on such representation, and induced by it, assisted defendant in hitching him, and while rendering this assistance suffered from the vicious conduct of the horse, he (the defendant) would be responsible. The defendant would also be responsible, if in ignorance of the fact whether the horse, which was an unbroken colt, was gentle or not, he carelessly represented to plaintiff that he was gentle, and the plaintiff relied on such representation and, acting on it, received an injury. I find no other error in the record. BEATTY, C.J., (concurring.) I concur in the judgment on the ground that the instruction commented upon was not sufficiently guarded. The jury should not have been told that the defendant was responsible if he induced the plaintiff to take hold of the horse by repre FANNING v. LEVISTON et al. (No. 11,426.) (Supreme Court of California. March 26, 1889.) STREET ASSESSMENTS-EVIDENCE. In an action to foreclose a street assessment, where the warrant, assessment, etc., have been introduced in evidence under St. Cal. 1871-72, p. 815, § 12, providing that the same shall be prima facie evidence of the regularity and correctness of the assessment and all prior proceedings, it appeared that a certain street had been graded about 20 years before, and that the difference between the official grade and the existing grade nowhere exceeded 14 feet. Held, that this was not suffiCivil Proc. 1963, subd. 15, that official duty has cient to overcome the presumption under Code been regularly performed. Department 1. Appeal from superior court, city and county of San Francisco; JOHN F. FINN, Judge. Action by E. Fanning against William Leviston and F. G. Gilman, to recover on a street assessment. There was a judgment for defendants, and plaintiff appeals. J. M. Wood, for appellant. viston, for respondents: William Le declaration of a homestead to contain a description 1. Under the California statute requiring the of the premises, and "an estimate of their actual cash value," a declaration stating that the property claimed "does not exceed in value the sum of $5,000" is sufficient. 2. The failure of the county recorder to note the recordation of the declaration in his index of recorded instruments does not affect the validity of the homestead. In bank. Appeal from superior court, Eldorado county; GEORGE E. WILLIAMS, Judge. Action by Southwick against B. F. Davis and wife to foreclose a mortgage. From a|ity of the claim. If the estimate were 10 judgment for plaintiff defendants appeal. Blanchard & Swisler, for appellants. Irwin & Irwin, for respondent. times more than the actual value, or only one-tenth as much, the claim would not be bad on that account. There is, however, a difference in some respects between a homeMCFARLAND, J. This is an action to fore- stead on land worth more than $5,000, and close a mortgage on certain premises, exe- one on land not worth more than that cuted to the plaintiff by the defendant B. F. amount, and it may be that the legislature Davis, on October 11, 1884. The defendant merely intended to have an estimate with reMary S. Davis, wife of said B. F. Davis, an- spect to that particular value. If so, then, swered, setting up that at and before the of course, the estimate in the case at bar was date of said mortgage the said premises were sufficient. At all events, the provision is a the homestead of her husband and herself. very loose one,-too loose to have applied to Defendant Jenks set up the same defense, al- it the rule of strict construction, even if that leging that after the execution of the mort-rule were not inapplicable for other reasons. gage said husband and wife conveyed the In ordinary affairs, out of court, if a man premises to him. The court below rendered were asked his estimate of the value of a cerjudgment for plaintiff, and the said defend-tain piece of property, and he should answer ants who answered appeal from the judgment. "Not exceeding $5,000," the common inferThe findings of the court show that on Jan-ence would be that he thought it worth in uary 31, 1876, the said B. F. Davis and his the neighborhood of, but not more than, said wife, Mary S. Davis, with several minor $5,000. Could it be fairly said that he had children, were residing on the premises, and made no "estimate" at all? And so, in the that on said day the said B. F. Davis exe-case at bar, considering all the circumstances cuted and filed for record with the county recorder a declaration of homestead upon said premises, and that the execution and recording of said declaration were perfectly valid, except in the particulars hereinafter mentioned. above alluded to, we do not think, to say the very least, that the language used in the declaration was such a total failure to comply with the statute as made the homestead void. The authorities cited by respondent do not establish the law against the views above stated, while the very latest decision of this court upon the point seems to be exactly in accordance with those views. In Scuyler v. Broughton, 18 Pac. Rep. 437, where the opin in by all the justices, (except one who was * * 1. It is found by the court, and argued by respondent, that the homestead was invalid because the statement in the declaration of the value of the property is that it "does not exceed in value the sum of $5,000;" the posi-ion written by SEARLS, C. J., was concurred tion being that the estimate of value should have been more specific, and that the consequence of this alleged defect is that the declaration is utterly void, and the whole structure of the homestead destroyed. We do not think that this position is tenable. The preservation of a homestead for the family is a marked feature of our law. It is enjoined by the state constitution itself. Of course it was necessary for the legislature to provide some manner by which one desiring to claim a homestead should make a public declaration of the fact, and designate the particular premises intended to be so claimed. But surely statutory provisions to that end should not substantially performed, and where the decbe subjected to the rule of strict construc-laration contains the essence of the statutory tion. Statutes for the purpose of carrying requirements, the construction should be so out the constitutional command are remedi-liberal as to advance the object of the constial, and should be liberally, or at least fairly tution and statute. By use of the language and reasonably, construed. The homestead right is not one to be industriously pinched and circumscribed and circumvented and beaten back. If the facts of an honest homestead claim be present, a substantial compliance with statutory provisions about making the claim public should be deemed sufficient. The Code provides, among other things, 2. The court below held the homestead to that the declaration must contain a descrip- be invalid solely upon the ground above tion of the premises claimed, and “an esti- stated. We shall not, therefore, discuss at mate of their actual cash value." It is difli- length the other points made by respondent cult to imagine the precise purpose of this in support of the judgment. The failure of provision. It is admitted on all hands that the county recorder to note the recordation the correctness or incorrectness of the esti- of the declaration in his index of recorded inmate has no effect whatever upon the valid-struments could not affect the validity of the adopted by the declarants in this case we think it may be fairly inferred they estimated the value of the premises to be about $1,600. The phrase used, [repeating it,] though not precise, is such as is frequently used to convey the impression that the figures mentioned approximate the judgment of the speaker." |