The Insolvent Act must control here. It does not confer on the Court any power to appoint appraisers. Where no homestead is selected it gives the Court power to proceed as in Section 1465, C. C. P. That section does not provide for any appraisement whatsoever. Under that section lands may be sold and a homestead set apart out of the proceeds. (McCauley's Estate , 50 Cal. 544.) But this is not a case falling under Section 1465. The Court, in this case, has the power, under Section 60, to set apart for the use and benefit of the bankrupt the property exempt from execution. It may, therefore, adopt its own mode, the statute not having designated any. ( C. C. P., § 187.) It is sufficient that it gives the insolvent $ 5,000, for that is the limit of his homestead. ( C. C., § 1260.)
The order directing a sale of the property has never been appealed from. Even if it be erroneous, it is not void.
OPINION In Bank. The Court:
There is no statute of this State authorizing a sale, in insolvency proceedings, of property which has been declared a homestead. Therefore, the proceedings had for a sale in this case passed no title.
Judgment and order reversed.