16 Cal. 213 | Cal. | 1860
Cope, J. concurring.
This is a suit to quiet the title to certain premises situated within the
In November, 1855, Norton and his wife conveyed by their joint deed, for the consideration of $3,500, a portion of the lot to the plaintiff, who brings the present suit to quiet his title against the claims of the defendants, asserted by virtue of their respective mortgages and judgments thereon.
Upon these facts, three questions are presented for consideration: 1st. Whether the mortgages to the defendants were absolutely void, or only invalid against the assertion of the homestead right; 2d. Whether, if not absolutely void, the liens of the mortgages were lost or impaired by the decree in insolvency; and 3d. Whether, if the liens were not lost or impaired, the conveyance of the premises to the plaintiff removed the restriction of the statute, and rendered them subject to forced sale under the judgments recovered upon the mortgages.
1. The first question was determined by the decision in Gee v. Moore, rendered at the October term. In that case we had occasion to consider the nature of the estate which the husband possesses in the homestead premises, and the restraint imposed by the Act of 1851 upon its aliena
In that case the plaintiff had executed a conveyance of the homestead, with the signature of his wife to the deed, but without her acknowledgment ; the instrument was treated, therefore, as his sole deedy and we decided that the estate passed to the grantee by the conveyance, subject to the right of the husband and wife to enjoy and use the premises as a homestead until another homestead was acquired, or their character as such homestead was otherwise gone; and that, upon the death of the wife without issue, the 'premises ceased to be a homestead, and the purchaser became entitled to the possession. In accordance with the views there expressed, we must hold that the mortgages in the present case were not absolutely void, but were invalid only to the extent required for the protection of the husband and wife in the enjoyment of their homestead rights. All power over the property, not inconsistent with the purposes of security and protection intended by the statute,
In Stewart v. Mackey, (16 Texas, 56) the Supreme Court of Texas held that a mortgage upon homestead premises, ineffectual at the time of its execution, could be enforced subsequently, after the homestead had been abandoned and another homestead acquired. “The entire object,” said the Court, “ of the law and Constitution, is to secure a homestead, and no infringement upon the husband’s rights of property, except such as may be necessary for the object designed, is intended by the law or is to be presumed.” And again: “ There appears to be no necessity to encroach upon the husband’s right of alienation further than may be necessary to secure these objects, nor to prohibit a creditor from taking a mortgage from the husband, subject to the contingency that the homestead may not be changed, or that the wife may not assent, and that in the mean time his claim may be barred by the Statute of Limitations,” etc. The effect, then, of the sole execution on the mortgages in question by the husband, whilst the premises retained the character of homestead, was simply to postpone the claims arising thereunder to the homestead rights. (Guiod v. Guiod, 14 Cal. 506.)
In thus ruling we refer, of course, to the provisions of the Act of 1851, as they stood previous to the amendments of 1860. It was with reference to those provisions that the rights asserted in Gee v. Moore were considered, and it is by reference to them that the rights of the defendants in the present case are to be determined. The amendments mentioned materially change those provisions, and render any mortgage hereafter of the homestead, except to secure or pay the purchase money, invalid for any purpose whatever.
2. The decree in insolvency did not discharge or impair the lien of the mortgages. The mortgagees had acquired vested rights in the property for the satisfaction of their claims, and those rights could not be thus divested. Nor are any such consequences contemplated by the Insolvent Act, but on the contrary, they are expressly provided against. The property of the insolvent is to be surrendered to his creditors, but the proviso to the thirty-sixth section of the 'act declares that “ all legal mortgages and liens, Iona fide, existing on such property at the time of the surrender, as aforesaid, shall remain good and valid, and may be enforced in the same manner as though no such surrender had been made.” The decree, therefore, setting apart the premises as % homestead for the benefit of the petitioner and his family, left the premises subject to the same liens which previously existed.
A statute of Wisconsin, like the statute of this State, exempts the homestead from forced sale on execution or other final process, yet in Hoyt v. Howe (3 Wis. 752) the Supreme Court of that State held, that a judgment recovered against the owner of premises, whilst they were occupied by him as a homestead, became a lien thereon; that the lien could not be enforced while the premises remained the homestead, but so soon as their homestead character was gone, they became subject to sale under the judgment. “ To hold the contrary,” said the Court, “ would be to maintain that property which is bound by and subject to a judgment—and only exempted from sale to satisfy the judgment by means of its peculiar character—when it loses its character with the consent and by the act of its owner, is nevertheless still exempt from sale. We are not aware of any legal principle, nor of any fair mode of reasoning which can be resorted to for the purpose of establishing this conclusion.”
In this case from Wisconsin, the judgment had passed against the
In this State, a judgment cannot become a lien upon the homestead premises. It can become a lien only upon the real property of the judgment debtor which is “ not exempt from execution ”—that is, which cannot be subjected to forced sale. Such is the provision of the statute, and the lien is the creature of statute. (Civil Practice Act, sec. 204.) The judgment, therefore, in the ■Wisconsin case, in creating a lien upon the property, was like the mortgages of defendants, and the decision in that case covers the questions in the case at bar, were it necessary to cite authority for their disposition. (See also, Chamberlain v. Lyell, 3 Mich. 448; Allen v. Cook, 26 Barb. 374; Howe v. Adams, 28 Vt. 541.)
The judgment must be reversed, and the Court below directed to dismiss the suit, and it is so ordered.