delivered the opinion of the Court—Norton, J. concurring.
This is an action to recover the possession of a lot in the City of San Francisco, sixty-eight feet nine inches front on Second Street, and one hundred and twenty-five feet in depth. The plaintiff claims title to the premises under and by virtue of a deed executed *396by the United States Marshal, dated October, 1860, under and in pursuance of a Marshal’s sale on execution on the thirty-first day of January, 1860, issued upon a judgment recovered by the plaintiffs in the United States Circuit Court for the Northern District of California against the defendant on the nineteenth day of November, 1858. Mrs. Badger, the wife of the defendant, intervened, claiming the premises as a homestead, and as her separate property.
The principal questions which arise in this case depend upon these claims to the property set up by the wife: the first of which we propose to examine is that relating to the homestead. It appears that«in 1855 Badger executed, acknowledged, and recorded an instrument purporting to be a declaration of homestead on thirty feet of these premises, which was all he owned at that time. This paper can have no force or effect—as the law in force at that time did not authorize the execution or recording of such instruments. He was, however, residing upon this lot of thirty feet with his family, and it constituted and was his homestead under the laws then in force. Afterwards, on the third day of May, 1861, Mrs. Badger duly executed, and acknowledged, and procured to be recorded, a declaration of homestead, which includes not only the thirty feet occupied as a homestead in 1855, but the adjoining lot, which had been purchased since 1855, of thirty-eight feet nine inches front by one hundred and twenty-five feet in depth. This declaration of homestead includes the premises now in controversy.
The referee finds that the lot, thirty feet wide, with the house, is of the value of $7,500, and the thirty-eight feet nine inches front is of the value of $4,800. The appellants contend that as the value of these lots exceed the $5,000, the value of the homestead allowed by law, and as they are separate lots, acquired by different titles, therefore the homestead claim should at least be limited to the lot thirty feet front on which the dwelling-house stands, and that the lot thirty-eight feet nine inches front should be held and deemed free and clear of the claim of homestead. There can be no valid objection to including more than one of several contiguous lots in the homestead claim, provided their value does not exceed in the aggregate $5,000, the sum allowed by the homestead law. But a person cannot thus include more than one lot in the home*397stead declaration where the value of such lot, with the dwelling thereon, equals or exceeds $5,000. And if it is attempted, the homestead claim will be held void as to all separate lots included therein, over and above the one thus occupied as a residence. The homestead claim cannot, therefore, in this case be held to extend beyond the lot of thirty feet front. The appellant in his brief does not claim that this lot passed by the sale to the plaintiffs, so that it is unnecessary to examine either the title set up to it by Mrs. Badger as her separate property, or any questions which might have been raised owing to the fact that its value exceeds $5,000.
The next questions to examine relate to the other lot thirty-eight feet nine inches front. It appears that on the eighteenth day of December, 1855, the defendant, Badger, purchased this lot and took a deed therefor from one Slade ; that afterwards Badger sold and conveyed the southern portion, to wit: thirty-four feet front on Second Street by one hundred and twenty-five feet deep, to one Scott, thus leaving the title to the northern portion, four feet nine inches wide by one hundred and twenty-five feet deep still in Badger. On the twenty-fourth day of April, 1857, Scott conveyed this south thirty-four feet by deed of bargain and sale to Mrs. Badger for the sum of $3,000, of which $1,000 was paid in cash and the remaining $2,000 was secured by a mortgage on the premises executed by Badger and his wife jointly, and they also gave their joint promissory note for the amount, which note and mortgage still remain unpaid.
The intervenor claims that she made this purchase of Scott for her own sole, and exclusive use, and benefit, as her own separate estate; and that the purchase money paid thereon was her own'1 separate property. This deed is not copied into the transcript, and we are unable to determine from the record whether the property was conveyed to her sole, separate, and exclusive use, or not. The referee who tried the cause found, that the cash payment of one thousand dollars was made as follows, to wit: That one Phinney, who resides in the City of Boston, had before then left with said Wm. Gr. Badger, for collection, a promissory note of another person, with authority to loan out the money, when collected, on Phinney’s account; that the note was paid to Badger shortly before *398the conveyance from Scott to Mrs. Badger; that, to enable Mrs. Badger to make the cash payment to Scott, Badger loaned to his wife the one thousand dollars collected for Phinney; that, subsequently, a portion of the one thousand dollars was refunded to Phinney by the sale of a piano, which was the separate property of Mrs. Badger, being between three hundred and fifty and four hundred dollars. The referee also found, that the intervener was not entitled to maintain her intervention, and a judgment was rendered accordingly, from which she has not appealed. The referee also found, that the plaintiffs were not entitled to recover, and they appeal from the judgment rendered thereon. The decision of the referee was adverse to the claim of title set up by Mrs. Badger; and as she has not appealed from that decision, it is conclusive against her, so far as relates to her claim to it as her separate property.
The law is well settled by the decisions of this Court, that a deed of purchase to the wife is presumptive evidence that the property thereby conveyed belongs to the community, and is liable as such to the debts of the husband, and can be disposed of by him like any other community property. But this presumption may be overcome by clear and satisfactory proof that it was acquired by the separate funds or property of either the husband or wife; and the burden of proof to rebut the presumption lies upon the party claiming it as separate. The fact that such a deed is made to the wife, instead of the husband, creates no presumption that the property is her separate estate. The conveyance being by>deed of purchase, excludes all presumption that this property was acquired by gift, bequest, devise, or descent. (Meyer v. Kinzer, 12 Cal. 247; Smith v. Smith, Id. 216; Pixley v. Huggins, 15 Id. 127.) The proof in this case does not clearly and satisfactorily show that this lot was purchased with the separate funds or property of the wife. It cannot, therefore, be held or deemed her separate estate; but it was community property, and liable to the debts of the husband, and subject to his control and disposition.
It further appears, that, on the third day of June, 1857, the defendant, Badger, filed his petition in a proper Court, to obtain a *399discharge from his debts under the Insolvent Law; that the proper proceedings were had, and, in due time, the Sheriff was duly appointed his assignee; and thereupon, Badger made, executed, and delivered to the assignee a general assignment, in writing, of all his estate, in general terms, without specifying any particular property. After proper proceedings, he obtained a decree discharging him from his debts. The respondent contends, that the assignee in this case took, by operation of law, ah the estate of the debtor, whether named in his schedule or not; that the title to this lot was thereby vested in the assignee, who held the same for the benefit of the creditors generally, in accordance with the insolvent law; and therefore the plaintiffs acquired no right, title, or estate in the property by their subsequent purchase under the judgment. It is unnecessary to determine these questions, because it is a rule of law that the execution defendant cannot defeat the purchaser’s recovery of his possession, by setting up a title in some third person. This rule is founded in good sénse and sound policy. (Jackson v. Graham, 3 Caines, 188; Jackson v. Bush, 10 J. R. 223 ; Jackson v. Davis, 18 Id. 7.) It follows, that this outstanding title in the assignee is no defense to the action.
The respondents contend, that the action is barred by the Statute of Limitations, on the ground that the defendant has not been in the possession of the thirty-four-foot lot since the deed from him to Scott, dated in January, 1856, and this action was commenced December 21st, 1860. This, however, was within five years, the time limited for actions of this kind. But, even if it had not been, the defendant, Badger, has been in possession of this lot ever since the deed from Scott to his wife. The deed, as has been shown, conveyed a community, and not a separate, estate; the possession followed the estate, and the husband is therefore to be deemed as having been in possession under it, and not the wife. This defense is therefore untenable. It follows, from the view we have taken of this case, that the referee erred in finding that the plaintiffs were not entitled to the possession of the lot, described as fronting thirty-eight feet nine inches on Second Street, and running back one hundred and twenty-five feet.
The judgment is therefore reversed, and the cause remanded for a new trial.