91 Cal. 94 | Cal. | 1891
On November 29, 1887, the defendant John Gerry made a promissory note to plaintiff for fifteen hundred .dollars and interest, payable in three months. Gerry was at that time the holder of a written contract from one Osborn, who was then the owner of the lot of land and premises described in the complaint, by which Gerry was entitled to a conveyance of said lot upon his payment of certain money; and when Gerry gave said note to plaintiff he assigned said contract to plaintiff as security for the payment of said note. After-wards Gerry paid to Osborn all the money due on said contract; and at Gerry’s request, Osborn executed a deed of conveyance of said lot to the defendant Eliza Gerry, who was and is the wife of said defendant John Gerry,
The part of the judgment which decrees the sale of the premises is erroneous. The court seems to have acted upon the theory that as the wife was not a subsequent purchaser for a valuable consideration, therefore, as against her, the prior unrecorded mortgage was valid. But the doctrine that unrecorded deeds and mortgages are good, except as against subsequent purchasers for a valuable consideration, does not apply to homesteads. Rights to homesteads are defined by the provisions of the code which directly deal with that subject. “ The doctrine bearing upon conveyances made to hinder, delay, or defraud creditors has no application to the creation of a homestead,” and a declaration of a homestead is not a “ conveyance” as that word is used generally in the code. Section 1241 of the Civil Code enumerates the cases where a homestead may be taken for a debtr and it can be so taken in no other instance. The only subdivision of that section upon which respondent could rest with any plausibility is the fourth, which is as follows: “ On debts secured by mortgages on the premises, executed and recorded before the declaration was filed for
The judgment, so far as it adjudges the sale of the premises described in the complaint, and the foreclosure of appellants’ interest therein, is reversed. In all other respects it is affirmed.
Garoutte, J., De Haven, J., Harrison, J., Sharpstein, J., and Beatty, C. J., concurred.