Kinsell

This action was brought for the purpose of quieting plaintiff’s title to a certain piece or parcel of land situated in the town of Spanishtown, in the county of San lant.

The complaint alleges that the plaintiff is the owner in fee of the real property described in the complaint, and that the defendants claim some estate or interest in said property, which claim “is without right or merit, and said defendants have not, nor has either of them, any right, title or interest in or to said property, or in or to any part thereof.”

The answer alleges that the property described in the complaint was a portion of a twenty acre tract of land which, for many years prior to the year of 1904, belonged to the parents of the defendant, Richard Thomas, the legal title to said land standing in the name of his father, Joseph S. Thomas; that “for more than four years prior to the year 1904 the defendant Richard resided on said parcel of land with his said parents, and during the last four years of his so residing thereon with his said parents, being then of the age of twenty-one years and upward, rendered and performed labor and services for his said parents in the care and cultivation of said…

The petition points out that, in the original opinion herein, we did not directly pass upon the contention, urged by counsel for the plaintiff in their brief, “that a homestead cannot be alienated in any manner whatsoever, except as prescribed by the code,” and that, inasmuch as the code provides that “the homestead of a married person cannot be conveyed or encumbered unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both husband and wife” (Civ. Code, sec. 1242), a parol gift of real property upon which the homestead of a married person subsists at the time of such gift is absolutely void and cannot, therefore, be enforced, notwithstanding that such gift may be the result of the joint act of both spouses for whose benefit such homestead has been declared.

While it is true that we -did not discuss this precise question in the original opinion, the necessary effect of the decision is that a parol gift of real property by the husband and wife, for whose benefit a homestead had been declared thereon and is in existence at the time of such gift, may and will be enforced by a court of equity where the circumstances of such gift are similar to…