Rix v. McHenry

7 Cal. 89 | Cal. | 1857

Burnett, J.,

after stating the facts, delivered the opinion of the Court—Murray, C. J., concurring.

As to the action of the Court below in refusing to set aside any portion of the mortgaged premises as a homestead, we think there was no error. The point was settled in the case of Cary v. Tice and Wife, decided at the last term of the Court. The phrase “resident of this State,” in the second section of the Homestead Act, means an actual and not a constructive presence.

We think that there was no error in the action of the Twelfth. District Court after the commencement of the proceedings in insolvency. It is true, that under the provisions of the fourteenth section of the act, “ all suits brought against the insolvent debtor anterior to his surrender of property before the Courts of other counties, shall be transferred to the Court having jurisdiction in the county in which said insolvent shall have presented his schedule.” But this provision relates to suits other than those for the enforcement of liens or mortgages, as is shown by the proviso to the thirty-sixth section. In such cases the proceedings are not affected by the pendency of the case of insolvency, and should there remain a surplus after discharging the lien and costs, the assignees would be entitled to it.

As to the position that the order of the Fourth District Court setting aside lot “ two” of the mortgaged premises as a homestead, precluded the plaintiff from his remedy upon the mortgage, we think it entirely untenable, upon every principle of law and justice. The only effect of this action of the Fourth District Court was a protection of the homestead against other creditors, while it did not touch the rights of the several mortgagees.

The other points in the case it is unnecessary to decide.

The judgment of the Court below is affirmed.