37 Cal. 176 | Cal. | 1869
We had occasion, in Gregg v. Bostwick, 33 Cal. 220, to consider the principal qualities of a statutory homestead. In defining a homestead we said: “Both in the Constitution and in the statute the'word 'homestead’ is used in the ordinary or popular sense, or, in other words, its legal sense is its popular sense. It represents the dwelling house at which the family reside, with the usual and customary appurtenances, including outbuildings of every kind necessary or convenient for family use, and lands used for the purpose thereof. If situated in the country, it may include a garden or farm. If situated in a city or town, it may include one or more lots, or one or more blocks. In either case, it is unlimited by extent merely. It need not be in a compact body; on the contrary, it may be intersected by highways, streets, or alleys. Feither is it circumscribed by fences merely. In respect to quantity, by itself considered, it is unlimited, whether in town or country. In short, the only tests are use and value. The former is both abstract and statutory, the latter statutory only. Whatever is used—being either necessary or convenient—as a place of residence for the family,
This definition is applicable, not only when the declaration is made and filed, but during the whole period of its existence, and up to the time when, upon the death of the husband or the wife it ceases to be a homestead, and the property vests in the survivor. The homestead, and the tests by which it is ascertained, are the same, whether the question arises between those claiming the homestead, or one of them and a vendee, a mortgagee, a creditor, or the heirs of the deceased husband or wife. There is not one homestead as against a creditor, and a different one when the survivor asserts his or her claims as against the heirs of the deceased. At its inception it is limited to five thousand dollars in value, and when the property is enhanced in value- so that it exceeds the statutory limit, the excess does not constitute a part of the statutory homestead. After the premises are worth five thousand dollars, every increase of value works a reduction in the area of the homestead, until a point is reached when it cannot be further cut down and leave a homestead of the value of five thousand dollars without material injury, and, after that point is reached, no part of the premises constitutes a statutory homestead, but the value or proceeds of the premises, to the extent of five thousand dollars, has the benefit of the exemption from forced sale, etc.
In this case a number of blocks and parts of blocks were included in the declaration of homestead. This was filed December 31st, 1860. There is nothing in the declaration
She asks, in her petition, that all the lands embraced in the declaration be set off to her, but she neither alleges nor proves what was, in fact, the homestead, at the time of her husband’s death. Such proof is indispensable; and one
It is proper to add, though the point is not made, that the petition is radically defective, because it does not state that she and her husband were entitled to or held any lands as their homestead at the time of his death, nor any facts from which that fact could be inferred; and the nearest approach to the allegation that the premises were ever impressed with the character of a homestead, is the allegation that at a certain time mentioned she filed the declaration of homestead which is set out in the petition.
We have preferred to place our decision upon the grounds already indicated, although the description of the lands in the declaration is so uncertain that it is very doubtful whether
Order affirmed, and remittitur ordered to issue forthwith.