14 Cal. 472 | Cal. | 1859
delivered the opinion of the Court—Baldwin, J. and Cope, J. concurring.
The clause in the conveyance following the habendum, is in effect a covenant of non-claim, though the usual words of a covenant are wanting. The words used clearly indicate an engagement of the grantor that’neither he, nor his heirs, nor any parties under or through him, will ever assert any right to the estate conveyed. Such covenant is generally held to amount to the ordinary covenant of warranty, and to operate equally by way of estoppel. It was so held in Gibbs v. Thayer, (6 Cush. 32); in Newcomb v. Presbury, (8 Met. 406,) and in numerous other cases.. Giving it this effect it must still be confined to the estate com
The inquiry then arises as to the estate which the plaintiff possessed in the homestead premises at the execution of his conveyance, and the restraint imposed by the law upon its alienation.
The Constitution provides, in the 15th Section of Art. 11, that “the Legislature shall protect, by law, from forced salo, a certain portion of the homestead and other property of all heads of families.” It only requires legislation exempting the property from forced sale. It does not look to legislation in restraint of voluntary alienation. The statute goes beyond the constitutional provision. It not only exempts the homestead from forced sale, but declares that no mortgage, sale, or alienation, of any kind, by the owner, if a married man, shall be valid without the signature and acknowledgment of the wife, if she be a resident of the State. Neither the Constitution or the statute recognize any estate in the wife; on the contrary, it is clear that both were framed upon the idea that it was out of the property of the husband, or at least, common property, that the homestead was to be carved. It is the homestead and other property of the head of the family, which is by the Constitution, to be protected from forced sale. It is the alienation by^the owner, if a married man, which the statute declares shall be invalid without the signature of the wife. The power of alienation, and not the nature of the husband’s estate, is thus affected. And this power is restricted only so far as it maybe necessary for the protection of the homestead. The invalidity only goes to the extent essential to this object. The husband can neither mortgage, sell, or otherwise
In the Constitution of Texas the following provision exists : “ The Legislature shall have power to protect by law from forced sale a certain portion of the property of all heads of families. The homestead of a family not to exceed two hundred acres of land, (not included in a town or city,) or any town or city lot or lots, in value not to exceed two thousand dollars, shall not be subject to forced sale, for any debts hereafter contracted, nor shall the owner, if a married man, bo at liberty to alienate the same, unless by the consent of the wife, in such manner as the Legislature may hereafter point out.” (Art. 7, Sec. 22.) The clause in our statute declaring the alienation without the signature of the wife invalid, is not more expressive than the language in the Constitution of Texas, yet the Supreme Court of that State, in Sampson et al. v. Williamson, (6 Texas, 109,) after quoting the section, said: “ By this provision the homestead is
In Stewart v. Mackay, (16 Texas, 56,) the question was presented whether a mortgage upon the homestead, though ineffectual at the time of its execution, could be enforced subsequently after the homestead had been abandoned and another acquired. In holding that the mortgage could be enforced, the Court said : “Were it not for the provision of the Constitution, that the owner of a homestead, if a married man, should not be at liberty to alienate the same unless by consent of the wife, the husband would have the unquestionable power to dispose of it at pleasure. His right, his absolute title, in the property, is not affected, but his power of alienation is restricted, and for the distinct and specific purpose of securing a homestead to the family. To effect this purpose, the wife, if living, must be consulted before the sale, and this for many reasons which might be enumerated, but especially that she may not be deprived of one homestead without provision for the acquisition of another. The entire object of the law and the 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/’
In the views here expressed we fully concur. If the premises are the separate property of the husband, or the common property of both husband and wife, before they become a homestead, they remain such separate or common property afterward; and the husband’s absolute power of alienation is only restrained so far as may be necessary for the protection of the homestead, and no further. It follows that the estate of the defendant passed to Elmore by his conveyance of March, 1853, subject to the right of husband and wife to enjoy and use the premises as a homestead until another homestead was acquired, or their char
We are aware of decisions of this Court holding different views from those expressed in this opinion. Thus in Taylor v. Hargous, (4 Cal. 273,) it is said that as soon as a place, by the occupancy in good faith of the family, acquires the character of a homestead, the nature of the estate is changed without reference to the manner in which the title to the property originated, whether it was the separate estate of either husband or wife, or the common projjerty of both. “It is turned,” says the Court, “ into a sort of joint tenancy, with the right of survivorship, at least as between husband and wife, and this estate cannot be altered or destroyed except by the concurrence of both in the manner provided by law;” and the judgment of the Court below in that case adjudging the deed of the husband, without the signature of the wife, to be canceled as null and void, was affirmed.
In Poole v. Gerrard, (6 Cal. 71,) and in Revalk v. Kraemer, (8 Id. 73,) the doctrine advanced in Taylor v. Sargous, as to the joint estate of the husband and wife with the right of survivorship is repeated. This doctrine has never met the approbation of the profession, and is not warranted by any language of the Constitution or the statute. There is nothing in the nature of the homestead right or privilege which justifies its designation
It follows from the views wo have expressed, that the defendant was entitled to judgment upon the agreed statement of facts as to the entire property, and the judgment of the Court below must be reversed, and that Court directed to enter judgment in his favor.
Ordered accordingly.