tion, and a judgment was rendered accordingly, from which she has not appealed. The referee also found that the plaintiffs were not entitled to recover, and they appeal from the judgment rendered thereon. The decision of the referee was adverse to the claim of title set up by Mrs. Badger; and as she has not appealed from that decision, it is conclusive against her, so far as relates to her claim to it as her separate property.

The law is well settled by the decisions of this court, that a deed of purchase to the wife is presumptive evidence that the property thereby conveyed belongs to the community, and is liable as such to the debts of the husband, and can be disposed of by him like any other community property. But this presumption may be overcome by clear and satisfactory proof that it was acquired by the separate funds or property of either the husband or wife; and the burden of proof to rebut the presumption lies upon the party claiming it as separate. The fact that such a deed is made to the wife, instead of the husband, creates no presumption that the property is her separate estate. The conveyance being by deed of purchase, excludes all presumption that this property was acquired by gift, bequest, devise, or descent: Meyer v. Kinzer, 12 Cal. 247 [73 Am. Dec. 538]; Smith v. Smith, Id. 216 [73 Am. Dec. 533]; Pixley v. Huggins, 15 Id. 127. The proof in this case does not clearly and satisfactorily show that this lot was purchased with the separate funds or property of the wife. It cannot, therefore, be held or deemed her separate estate; but it was community property, and liable to the debts of the husband, and subject to his control and disposition.

It further appears that on the third day of June, 1857, the defendant, Badger, filed his petition in a proper court to obtain a discharge from his debts under the insolvent law; that the proper proceedings were had, and in due time, the sheriff was duly appointed his assignee; and thereupon, Badger made, executed, and delivered to the assignee a general assignment, in writing, of all his estate, in general terms, without specifying any particular property. After proper proceedings, he obtained a decree discharging him from his debts. The respondent contends that the assignee in this case took, by operation of law, all the estate of the debtor, whether named in his schedule or not; that the title to this lot was thereby vested in the assignee, who held the same for the benefit of the creditors generally, in accordance with the insolvent law;

and therefore the plaintiffs acquired no right, title, or estate in the property by their subsequent purchase under the judgment. It is unnecessary to determine these questions, because it is a rule of law that the execution defendant cannot defeat the purchaser's recovery of his possession, by setting up a title in some third person. This rule is founded in good sense and sound policy: Jackson v. Graham, 3 Caines, 188; Jackson v. Bush, 10 Johns. 223; Jackson v. Davis, 18 Id. 7. It follows that this outstanding title in the assignee is no defense to the action.

The respondents contend that the action is barred by the statute of limitations, on the ground that the defendant has not been in the possession of the thirty-four-foot lot since the deed from him to Scott, dated in January, 1856, and this action was commenced December 21, 1860. This, however, was within five years, -the time limited for actions of this kind. But even if it had not been, the defendant, Badger, has been in possession of this lot ever since the deed from Scott to his wife. The deed, as has been shown, conveyed a community and not a separate estate; the possession followed the estate, and the husband is therefore to be deemed as having been in possession under it, and not the wife. This defense is therefore untenable. It follows, from the view we have taken of this case, that the referee erred in finding that the plaintiffs were not entitled to the possession of the lot, described as fronting 38 feet 9 inches on Second Street, and running back 125 feet.

The judgment is therefore reversed, and the cause remanded for a new trial.

NORTON, J., Concurred.

On petition for rehearing, CROCKER, J., delivered the following opinion: A rehearing is urged on the ground that one point presented by the appellant in his brief was not passed upon in the former opinion. It is contended that, as the homestead declaration covers the whole property, including both lots, therefore, even though the value exceeds five thousand dollars, the excess cannot be recovered in ejectment,—that it was not liable to forced sale on execution. Several decisions of this court are cited which sustain the principle that a judgment is no lien upon the homestead, and that the same cannot be sold on execution: Cook v. McChristian, 4 Cal. 23; Ackley v. Cham

berlain, 16 Id. 181-213 [76 Am. Dec. 516]; Williams v. Young, 17 Id. 403. In another case cited, that of Gary v. Estabrook, 6 Id. 457, it was held that where the homestead claimed by the defendant in execution had been ascertained by appraisement to exceed five thousand dollars, a sale thereof should not be made by the sheriff under execution until an exact appraisement of the value of the premises is obtained, so that he could sell and convey a definite undivided interest therein. That is, to illustrate, if the homestead should be found, upon appraisement, to be worth ten thousand dollars, then as the undivided one half only would be exempt under the homestead law, he could then proceed to sell and convey the other undivided half not exempt. This rule properly applies to a case of a single lot or tract of land on which the dwelling of the debtor stands, but it is not necessary to take that course where the homestead covers two or more lots, on only one of which is the dwelling of the debtor. As stated in the former opinion, the debtor may include several contiguous lots in his homestead claim, provided they do not exceed in value five thousand dollars; but if the lot on which the dwelling stands equals or exceeds in value the five thousand dollars, the attempt to include any other lot or lots will fail. If inserted in the declaration filed, they will not in such case form any part of the homestead, any more than as though they had not been inserted therein. The law requires that the debtor act in good faith, and not, under cover of a law made for his special benefit, attempt to embarrass his creditors, or hinder or delay them in collecting their just debts. It is better for the debtor to treat the lot or lots not occupied by the dwelling as free from the homestead, and therefore liable to levy and sale on execution, like any other property not exempt from execution, than subject the debtor to the risk of the loss of the whole homestead property, on the ground that he had included an excessive quantity of value in his declaration for the purpose of hindering, delaying, and defrauding creditors. As to the objection that the value of the separate pieces of property, as reported by the referee, was taken at a date subsequent to the filing of the declaration of homestead, and that the property may have greatly improved in value in the mean time, we think it is entitled to no weight, for the reason that there was no proof or finding as to the value at the time of the filing of the declaration; in which case the presumption would be that the value would be the same, as there properly could be no

presumption of either an increase or diminution of the value in the intermediate time. We do not wish to be understood, however, as holding that the value at that date is to fix the extent or quantity of land exempt as a homestead for all future time, regardless of the subsequent increase of value caused by the construction of improvements, or otherwise. That is a question to be determined when it is properly before the court. The rehearing is denied.

NORTON, J., Concurred.

HOMESTEAD ON CONTIGUOUS TRACTS OF LAND: Walters v. People, 65 Am. Dec. 730; Pryor v. Stone, 70 Id. 341, and extended note thereto 350.

VALUE OF HOMESTEAD IS NOT LIMITED IN IOWA: Rhodes v. McCormick, 68 Am. Dec. 663. In Texas, urban homestead is limited as to value, but not as to number of lots which it shall embrace: Pryor v. Stone, 70 Id. 341. In Wisconsin, it must not exceed a prescribed quantity of land: Phelps v. Rooney, 76 Id. 244.

HOMESTEAD, WHETHER SUBJECT TO LIEN OF JUDGMENT: Hoyt v. Howe, 62 Am. Dec. 705, and note 709; note to Ackley v. Chamberlain, 76 Id. 518; citing the principal case.

HOMESTEAD IS EXEMPT FROM SALE UNDER EXECUTION: Ackley v. Chamberlain, 76 Am. Dec. 516, and note 518; Hoyt v. Howe, 62 Id. 705; note to Rockwell v. Hubbell's Adm'rs, 45 Id. 252; Sampson v. Williamson, 55 Id. 762. But that it is subject to execution under some circumstances, see Bishop v. Hubbard, post, p. 132.

ALL PROPERTY ACQUIRED AFTER MARRIAGE BY EITHER HUSBAND OR WIFE IS COMMON PROPERTY, in California, except such as may be acquired by gift, bequest, devise, or descent: Meyer v. Kinzer, 73 Am. Dec. 538.

PRESUMPTION ATTENDING POSSESSION OF PROPERTY BY EITHER SPOUSE 13, THAT IT BELongs to CommuNITY: Meyer v. Kinzer, 73 Am. Dec. 538, and note 543, citing the principal case, and showing what is necessary to overcome this presumption. To the same points, see Smith v. Smith, 73 Id. 533, and note 537.

PURCHASE WITH SEPARATE FUNDS OF EITHER SPOUSE MUST BE AFFIRMATIVELY ESTABLISHED by clear and decisive proof: Meyer v. Kinzer, 73 Am. Dec. 538.

FACT OF PURCHASE EXCLUDES SUPPOSITION OF ACQUISITION by gift, bequest, devise, or descent: Meyer v. Kinzer, 73 Am. Dec. 538.

PROPERTY CONVEYED TO MARRIED WOMAN IS PRESUMED TO BE COMMUNITY PROPERTY, and it devolves upon her to show by clear and satisfactory proof that it was purchased with her own individual means: Castro v. Illies, 73 Am. Dec. 277, and note 287.

THE PRINCIPAL CASE WAS CITED in each of the following authorities and to the point stated: The purchaser of property at a sheriff's sale is only required to show a sale, and the authority of the officer to make it; the sheriff's deed proves the former, and the judgment and execution prove the latter. The sheriff's deed also estops the execution defendant from controverting the title acquired by it: Blood v. Light, 38 Cal. 658; Los Angeles Co. Bank v. Raynor, 61 Id. 147.

AM. DEC. VOL. LXXXIII-9

BULLOCK V. HUBBARD.

[23 CALIFORNIA, 495.]

CREDITORS OF PARTNERSHIP ARE ENTITLED TO PREFERENCE over the creditors of the individual partners, in the payment of their debts out of the partnership property, or moneys arising therefrom, without regard to the priority of attachment liens.

Hub

SAME-APPLication of SAME PRINCIPLE TO CREDITORS OF SEVERAL PARTNERSHIP FIRMS. - Where B. & L. are partners, and B. & L. as a partnership are also a member of two other firms, B., L., S., & D., and B., L., & S., the creditors of B. & L. are entitled to a preference in the payment of their debts, over the creditors of B., L., S., & D., and B., L., & S., out of money which is the proceeds of the property of B. & L., and this in the order of the priority of their several attachment liens. BISHOP AND LONG were general partners in the farming and stock business. This firm, as a partnership, entered into a partnership with Seifert and Dodsworth, in the butchering business. Bishop and Long, as a partnership, also entered into a partnership with Stewart, in the sheep business. Hubbard, Hall, and Allen were creditors of Bishop and Long, and of the firm of Seifert and Dodsworth. They were also creditors of Bishop and Long and of Stewart. Duncan was a creditor of Bishop, Long, Seifert, and Dodsworth, and of Bishop, Long, and Stewart. Reed was a creditor of Bishop and Long. The partnerships failed, and the creditors got out attachments. bard, Hall, and Allen, and Duncan had theirs in the sheriff's hands before Reed obtained his. The sheriff, however, when he made the levy, had all the attachments in his hands, and made a levy on all the property by virtue of each, but in the order in which he had received them. Judgments were rendered, and executions issued in all the actions on the same day, and all the executions put into the sheriff's hands on the same day. The money received from the sale of the property of Bishop, Long, Seifert, and Dodsworth, and Bishop, Long, and Stewart, did not satisfy the executions against those firms. But the sheriff still had in his hands about eighteen hundred dollars, left from the proceeds of the property of Bishop and Long. Hubbard, Hall, and Allen, Duncan and Reed, each claimed this money: Hubbard, Hall, and Allen, and Duncan, because their attachments were first in point of time; Reed, because he was a creditor of Bishop and Long. On an action commenced by the sheriff to compel the creditors to litigate their respective rights, a judgment was rendered awarding the money to Reed and Hubbard, Hall and Allen. Duncan appealed. It was stipulated that the decision should be