GRAY, C.

This is an action for an injunction to restrain an execution sale of plaintiff's homestead. The homestead was declared upon and covered 523.94 acres of contiguous land situated in Modoc County, of the value of three thousand dollars. Of this land one hundred and sixty acres constituted what was known as the "Payne Pre-emption," and the rest was known as the "Desert Claim." The declaration of homestead also included certain water-rights, reservoirs, and ditches in which plaintiff has a joint interest and which interest was appurtenant to the lands in question.

The findings and judgment are to the effect that the defendants do not intend to sell and have not advertised for sale, the Payne Pre-emption. It is also found and adjudged that there is no homestead upon any portion of the desert claim. It is further adjudged that the water-rights, ditches, dams, reservoirs, flumes, etc., are subject to the lien of the judgment and are not exempt from execution on account of the homestead.

The plaintiff, Payne, on June 7, 1897, by deed conveyed to J.H. Stewart and D.W. Jenks a one-third undivided interest in the desert claim, and the water-rights, ditches, etc., appurtenant thereto. It is decreed that whatever right, title, or interest was conveyed by said deed is not affected by the judgment, and that only the interest in said desert claim and the appurtenances thereto remaining in plaintiff be sold under the execution. The plaintiff appeals from the whole judgment, and the defendants appeal from that portion only which declares that the deed to Stewart and Jenks conveyed a one-third interest in the property and exempts the interest so conveyed from the execution sale.

The appeal of plaintiff. The declaration of homestead was in due form, and was duly executed and filed by plaintiff on the second day of October, 1888. It described and claimed the whole property, including the pre-emption, the desert claim, and the water-rights, reservoir, reservoir site, ditches, dams, and flumes, as a homestead, and declared the value of the whole to be three thousand dollars. At that date the plaintiff was, with, his family, living in a house on the pre-emption claim, and all the property was the community property of plaintiff and his wife. Plaintiff's title was that of pre-emption and desert-land claimant, which claims he afterwards perfected, and obtained patents to all the land. Thereafter, and on the ninth day of March, 1890, the plaintiff executed to the Siskiyou County Bank, one of the defendants herein, his promissory note. On the ninth day of November, 1893, the wife of plaintiff died. In December, 1895, the said bank recovered judgment against plaintiff on said note. Thereafter, in January, 1896, the said bank caused execution to issue on said judgment, and caused the same to be levied upon the desert claim, water-right, reservoir site, ditches, etc., appurtenant thereto.

The homestead embracing the desert claim as it did had the effect to exempt the same from execution. The water-rights, ditches, reservoir site, etc., appurtenant to said desert claim were also part of said homestead, and likewise exempt The findings and conclusions of the court to the contrary are based upon a wrong theory and are erroneous. The land was contiguous, and although it had been obtained from the government by different titles, it constituted but one tract of land, all resided upon, and in the possession and occupancy of the plaintiff. It was not necessary that it should be inclosed with a fence. Ditches had been built and water conducted by plaintiff upon the desert claim during the year 1888 and a part of 1889, and plaintiff's house where he resided being on the pre-emption claim evidenced a residence upon and occupancy of the entire tract, including the desert claim. He included the whole tract in his declaration, and claimed it all as his homestead. The entire property is conceded to be under the five-thousand-dollar limit of value allowed by law to the homestead claimant. It was not necessary to show that the desert claim was devoted to any particular or profitable use by plaintiff. Nor was it necessary to show that he devoted it to any use at all other than as a part of his home place or homestead. It was sufficient to show that it was devoted to that purpose, so resided upon, so occupied, so declared upon, and not used in any manner inconsistent with its use as a homestead. Those cases, applying to city or other property, used altogether or chiefly for business purposes, have no application to a case of this character, where the property is situated in a rural district where farming or grazing is the only useful purpose it can be devoted to in addition to making a home of it. Our code places no limit on the amount of property that may be claimed as a homestead except to confine it to the value of five thousand dollars. "The homestead consists of the dwelling-house in which the claimant resides, and the land on which the same is situated, selected as in this title provided." (Civ. Code, sec. 1237) There is nothing to be found in the above section or elsewhere in the code that can properly be constructed into a limitation of the area of the homestead as applied to property here in question. The homestead declared upon may embrace an area even greater in value than the five-thousand-dollar homestead exemption allowed by section 1260 of the Civil Code. In such a case the homestead is not void, but proceedings must be had under section 1245 et seq. of the Civil Code for the appraisement and division or sale of the property. Let the area be ever so large, no division even can be had in court except for excess in value. A careful examination of all the cases in this state wherein it has been held that the homestead declaration covered property that could not be properly treated as a part of the homestead will disclose that in every such case the property excluded from the homestead was either occupied as the home of some person other than the homestead claimant, or had on it a house in which an independent business was carried on, or was devoted to some other purpose entirely foreign to and inconsistent with its use as a homestead. In many cases in this state hundreds of acres of land in the country, fenced and cross-fenced, have been held to be properly embraced in the homestead. In one case (Ornbaum v. His Creditors, 61 Cal. 455) a homestead was declared upon eleven hundred acres of land, three hundred acres of which was inclosed with a fence, and the rest, uninclosed, used by the homestead claimant in conjunction with his neighbors as grazing land, the dwelling-house being situated on the inclosed part, and it was held that the whole property was impressed with the character of a homestead. It was also held that the fact that title to much of the uninclosed portion of the land was subsequently acquired by the claimant from third parties who had pre-empted the same did not affect the homestead. The court said in that case: "Now it is objected that Ornbaum had no actual residence on the land outside of his inclosure at the time the declaration of homestead was filed. His residence within the inclosure was sufficient upon the facts as found. He had title to and exercised control over all the land. The evidential facts inserted in the findings of fact (we refer to those as to the neighbors grazing the uninclosed portion, and the taking up of pre-emption claims on the land have no proper place there, but they, with the other facts found, and which follow them in order in the findings, sustain the judgment of the court." The fact that the land here was desert, and presumably unfit for agricultural purposes, is no good reason why it could not be claimed as and with the pre-emption claim devoted to the uses of a homestead until it could be reclaimed and made fit for grazing or some other agricultural purpose. The question of "use" as applied to the homestead relates always, as will be seen from an examination of the cases, to the use of the property as a home. If it is used as a home, or as part of a home place, it is immaterial whether it is farmed, grazed, or devoted to no agricultural use at all. The material thing to be shown is, that it is devoted to use as a home for the claimant and his family, and that no part of it is applied to any use inconsistent therewith. It is plain that land may be used to live on solely without being devoted to any other use at all and still be a homestead.

The interest in the water-rights, ditches, etc., though it was but a partial interest in an entire water-system held jointly or in common with others, yet as it was obtained specially for use upon the lands claimed as a homestead, and was necessary and appurtenant thereto, it became part and parcel of the homestead. (Fitzell v. Leaky, 72 Cal. 477.) No part of the entire property can be subjected to execution in the absence of a showing that it exceeds in value the statutory exemption. The homestead was not abandoned as to any portion of the desert claim by the deed of the plaintiff to his wife in her lifetime of the pre-emption claim. For section 1243 of the Civil Code provides: "A homestead can be abandoned only by a declaration of abandonment, or a grant thereof, executed and acknowledged: 1. By the husband and wife, if the claimant is married." A deed by the husband alone is not a grant executed and acknowledged by the husband and wife. (Freiermuth v. Steigleman, 130 Cal. 392.)

Nor did any subsequent deed of the husband of any moiety or part of any portion of the entire property have the effect to abandon or nullify the homestead exemptions as against the execution in question. When the wife died, the homestead, so far as it related to the desert claim, having been selected from the community property, vested absolutely in the surviving husband, the plaintiff herein, and it continued free and exempt from all previous debts, including plaintiff's debt theretofore incurred to the bank. (Code Civ. Proc., sec. 1474.) The sale by him of any interest, joint or several, in any part or parcel of the property thereafter could have no effect upon his right to claim this exemption. He had the right thereafter to deal with the property any way he chose without regard to his previous debts. So far at least as those previous debts were concerned, the property was exempt, and no sale of any mere interest in the property could waive that exemption, and of course his grantees took title from him free from all lien or liability against the property on account of such debts. The cases like Carroll v. Ellis, 63 Cal. 440, in which it has been held that a homestead should be treated as abandoned where the husband and wife joined in a deed of an undivided interest in the property to a third person, are not governed by the same principle as this case. In those cases both spouses were living and joined in the deed. Here one of the spouses was dead, and the deed of the undivided interest was made by the surviving spouse alone. As said in Dickey v. Gibson, 113 Cal. 31: "By the death of the first wife the homestead property vested absolutely in the surviving husband, Samuel Gibson. As far as the legal title is concerned, it vested in him as fully and perfectly as though no homestead had ever been carved out of it. The limitations and immunities which accompanied the enjoyment of the property under such title modified, not the title, but its enjoyment, and were only such as the statute imposed." The interest of plaintiff in the property, after his wife's death, became something different and greater than it was in her lifetime. He had then not only the absolute title, but also the absolute right of exemption in the property from all former debts, as well as the right to dispose of it in any way he saw fit.

By reason of their claims against plaintiff the defendants had no interest whatever in the property, as it was absolutely exempt from such claims. They could not be injured nor could any right of theirs be prejudiced by any disposition that the plaintiff might see fit to make of the property. Therefore, there is no good reason for extending the doctrine of those cases which hold that a homestead cannot affect an undivided interest in land, and that a subsequent sale of such interest is an abandonment of the homestead, to a case like this where the undivided interest has not been conveyed until after the death of one of the spouses, and the whole title to the homestead has "vested absolutely" in the survivor.

The facts found are sufficient to warrant a decree as demanded by plaintiff.

The appeal of defendants. From what has already been said it is apparent that the interest in the desert claim conveyed to Jenks was at all times and still is exempt from defendants' judgment.

The appeal of defendants should be dismissed. The judgment should be reversed upon plaintiff's appeal, and the court below should be directed to enter a decree upon the findings forever enjoining and restraining the defendants from selling any portion of the property under the judgment or execution in question.

Chipman, C., and Smith, C., concurred.

For the reasons given in the foregoing opinion the appeal of defendants is dismissed, the judgment is reversed upon plaintiff's appeal, and the court below directed to enter a decree upon the findings forever enjoining and restraining the defendants from selling any portion of the property under the judgment or execution in question.

Henshaw, J., Lorigan, J., Shaw, J.