The action is to quiet title. The facts were stipulated. Jesse H. Butler was the husband of Ida Merrill Butler in March, 1882, at which time the wife filed a declaration of homestead upon the separate property of the husband. In February, 1892, Ida M. Butler was adjudged insane and committed to the asylum at Agnews. In April, 1892, the husband filed a petition to be allowed to sell the homestead under the provisions of an act entitled "An act to enable certain parties therein named to alienate or encumber homesteads." (Stats. 1873-74, p. 582.) The order was granted and the sale was effected. The defendants claim title under this sale. Their title was upheld by the trial court, and judgment was rendered for them accordingly.
The first contention of appellant is against the constitutionality of the act. We think the title of the act sufficiently indicates its purpose, and, as for the other matters, they must be considered as adversely adjudicated by the case of Rider v. Reagan, 114 Cal. 667, where the question of the constitutionality of this act received careful consideration.
It is next contended that the court never acquired jurisdiction to order the sale because of the omission of certain statutory requirements from the petition, and that, therefore, the sale is void. Section 3 of the act requires that in the *Page 26 petition shall be stated the value of the homestead to be sold or encumbered. In the petition which was the foundation of these proceedings there is a total absence of such allegation, nor are there any averments from which an expression of the value may be derived. The court acquires jurisdiction to order a judicial sale only upon the filing of a petition sufficient in form. (Townsendv. Gordon, 19 Cal. 189.) The statutory prerequisites to the execution of such a power may be and frequently are in their nature arbitrary, but when the legislature has prescribed them they may not be omitted or ignored. (Thatcher v. Powell, 6 Wheat. 119.) Courts have shown great liberality in construing such petitions because of the manifest hardships which result from overthrowing sales for such irregularities, when in other respects they have been fairly conducted; but no court has gone to the length of holding that a petition for such sale is sufficient when there is a total omission of a statutory prerequisite to the conferring of jurisdiction. If, in this case, it could be said with any reason that the value of the property was even inferentially stated, we should be inclined to uphold the sale; but even with an inclination so to do, we are unable to see in any or in all the terms of the petition any language which can be fairly construed into a declaration of value.
The judgment is therefore reversed and the cause remanded.
Van Dyke, J., and McFarland, J., concurred.