Lies v. De Diablar

12 Cal. 327 | Cal. | 1859

Baldwin, J.,

delivered the opinion of the Court—Terry, C. J., concurring.

We think that the plaintiff below cannot maintain his claim, to subject to his mortgage, executed in 1854, the premises, (to the extent of $5,000 in value) for the reason that these were the homestead of the family. The adultery or abandonment by the wife did not divest the property of the character of homestead. It is not material when the title to the homestead accrued. It was within the competency of the Legislature to declare what property should be exempt from forced sale, and what should be the mode of its disposition, provided antecedent claims of creditors or others were not affected by the law. The Legislature has provided that the homestead should not be sold except in a particular way, which is, by the wife joining the husband in the deed. It is a mistake to suppose that this provision was solely for the benefit of the wife. It was as much for the benefit of the children. The husband can make no disposition of the property except in the statutory mode, and it does not descend as assets of the estate if he leaves a family.

It is not necessary to inquire whether the husband could make any disposition of the estate by will, which would deprive the wife, under the circumstances, of her right to participate in the benefits of the homestead; though we do not see that the statute has made the crime of adultery, or abandonment, or desertion by the wife of the homestead, or of the family, a cause of defeating or impairing her right.

The proceedings of the Probate Court—the plaintiff not having been a party—were not, of themselves, operative to defeat his claim to this property; but the radical objection to the plaintiff’s recovery is, that no title, under the facts stated, inured to him—the deed of the husband alone to the homestead premises being simply void.

We think it not material to inquire what the Mexican law prevailing at the time of the marriage was ; nor at what time the property was acquired ; nor whether it was common or separate property. For, as before intimated, the Legislature could constitutionally declare the modes of transfer of property to take effect in futuro, subject only to the provision that rights already vested had not intervened. No man has any vested right to dispose of any property, by whatever title he holds, in any way other than that which the law prescribes. The law might prescribe that real estate of every kind should only pass by deed of husband and wife; it has prescribed that a particular description of real estate—the homestead—should only pass in this way; and it is not material by what title or when the party acquires the property.

The judgment is affirmed.