Ross

This action, of claim and delivery, was brought to recover the possession of a lot of prunes taken by the defendant, as sheriff of Santa Clara county, under a writ of execution upon a judgment against Grace M. B. Odell. Plaintiff recovered judgment for the possession of the prunes, and this appeal is from the order denying defendant’s motion for a new trial.

The complaint is in the ordinary form of an action for claim and delivery, and defendant justifies under a judgment and execution against Grace M. B. Emerson, otherwise Grace M. B. Odell, and in favor of one Mrs. J. M. Sweetzer, upon which levy was made upon the property sued for on the thirtieth day of August, 1905, as the property of Grace M. B. Odell.

The evidence shows without conflict that the prunes were the crop grown during the year 1905 upon the homestead of Grace M. B. Odell and her husband, F. E. Odell, which homestead had theretofore been duly selected by Mrs. Odell for the benefit of herself and husband, from her separate property.

In the month of January, 1905, F. E. Odell and his wife, Grace M. B. Odell, entered into a parol agreement, by the terms of which he agreed to do all the work and bear all of the…