Appeal from a judgment of the Superior Court of Napa County.

The facts are stated in the opinion of the court.

The court had jurisdiction in this case, and here the court found the property to be community property, which is conclusive of its status. (Kearney v. Kearney, 72 Cal. 591; Griffith’s Estate, 84 Cal. 113.) By the force of the order setting aside the homestead the title thereto is as against the plaintiff in the defendant. (Code Civ. Proc., sec. 1908; JacJcson v. Lodge, 36 Cal. 28; Estate of Moore, 96 Cal. 522.) Plaintiff's complaint does not allege or even suggest that any fraud or device was resorted to by defendant, or that defendant by any act prevented plaintiff from making proofs relative to the character of the property set aside as a homestead; on the contrary, it affirmatively appears that no such fraud or device was resorted to by defendant. The fact that defendant willfully or otherwise testified falsely as to the character of said property is not such fraud as a court of equity will relieve against. (United States v. Throck-morton, 98 U. S. 61; Gruwell v. Seybolt, 82 Cal. 8; Pico v. Cohn, 91 Cal. 129; 25 Am. St. Eep. 159.)

The lower court had no power or jurisdiction to set apart as a homestead to defendant separate property of deceased, while there was community property belonging to the estate out of which a homestead could have been selected. (Code Civ. Proc., secs. 1465, 1468; Lord v. Lord, 65 Cal. 84.) Neither did the court have jurisdiction to set aside to the defendant, as a homestead, the separate property of deceased, absolutely; it only had jurisdiction to set it aside for a limited period, which must be designated in the order. (In re Noah’s Estate, 73 Cal. 583; 2 Am. St. Rep. 829; Gruwell v. Sey-bolt, 82 Cal. 7; In re Lahiff, 86 Cal. 153; In re Schmidt’s Estate, 94 Cal. 334.) The complaint in this case charges the concealment and suppression of material facts by the defendant, of false and perjured testimony given by her in the procurement of the order setting apart to her the premises as a homestead, with the intent to deceive and mislead the court, to the prejudice of the plaintiff, and that such concealment, suppression, false and perjured testimony had the intended effect to the injury of plaintiff. This certainly constituted fraud as defined by the Civil Code, and in the following authorities: Pomeroy’s Equity Jurisprudence, secs. 901, 919, 1364; Estate of Hudson, 63 Cal. 454; Dean v. Superior Court, 63 Cal. 474. Courts of equity have jurisdiction to vacate and set aside judgments obtained by the use of that fraud and deceit which imposes upon the jurisdiction of the court. (Carpentier v. Hart, 5 Cal. 406; Estate of Hudson, 63 Cal. 454; Dean v. Superior Court, 63 Cal. 473; Bergin v. Haight, 99 Cal. 52; Johnson v. Waters, 111 U. S. 640; Griffith v. Godey, 113 U. S. 93; Haven v. Haws, 63 Cal. 452; Story’s Equity Jurisprudence, secs. 1570, 1573; Pomeroy’s Equity Jurisprudence, secs. 916, 919; Pome-roy’s Remedies and Remedial Rights, sec. 267; Pico v. Cohn, 91 .Cal. 133; 25 Am. St. Rep. 159; Wickersham v. Comer ford, 96 Cal. 433.)