Baker

Respondent's petition for a rehearing of this cause having been denied by the court, I cannot allow the occasion to pass without expressing my dissent from the conclusion of the Department upon the point principally considered in the opinion of Justice Thornton.

If the decision of the court had. been rested upon the proposition that under the homestead laws of California Mrs. Baker, on the death of her husband, became by right of survivorship the sole and exclusive owner, as against her children, of the entire estate in the lands *343 covered b)' their joint declaration of homestead, — irrespective of its value at the time of such declaration, or of her husband’s death, — I might not have dissented from that view.

But the judgment and order of the superior court are reversed, and the cause is remanded for a new trial, to be had in accordance with the views expressed in the opinion, which thereby become, and must remain, the law of the case.

Amongst the views so expressed is one from which I feel constrained to express my dissent.

It is held — as I understand the opinion — that Mrs. Baker, by mere force of the act of Congress of 1866 granting to the cit}'' of San Francisco the…

In this case there are two appeals presented by defendant Brickell. The first, 12992, from the judgment on the judgment roll, and the second, 13574, from the order denying Briclcell’s motion for a new trial. They are to be considered together.

The action is brought to establish a trust against defendant Brickell. The lands in controversy are portions of what is known as outside lands of the city and county of San .Francisco, and not within that portion affected by the Van Ness ordinance. John' H. Baker went into possession of the land in suit, called Baker tract, or Golden Gate ranch, on July 9, 1860. He purchased this and other lands within his possession from one James C. Garner. He was then a married man, and at the time above stated went into possession with' his wife, 'Maria Baker (who is defendant Maria Baker Batchelder), and their children. John H. Baker died in March, 1863, leaving his wife surviving, with six chil *333 dren, of whom the plaintiff was one, then an infant of tender years. The surviving wife, with her children, remained in possession of the land in controversy, and was in possession when the act of Congress of March 8, 1866, entitled “An act to quiet title…