No. 19497 | Cal. | Jul 22, 1895
The plaintiff seeks by this action te foreclose a mortgage purporting to have been executed to it by the defendants, Ezra McCallister and Mary Mc-Callister, “his wife.” The execution of the mortgage- and note was not denied by either of these defendants. The defendant Ezra, in his answer, alleged that his co-defendant Mary was not his wife; that he was married in February, 1867, to one Amanda Fisher, and that shell ad ever since that date been his lawful wife; that on June 5, 1883, he was residing with his family on the premises described in the mortgage, and on that-day made and filed with the county recorder a declaration in which he claimed the said premises as his homestead; that the land was community property of himself and his said wife Amanda; that the homestead had never been abandoned, and that the said Amanda did not join in the execution of the mortgage, and that she was a necessary party to the action. A guardian ad litem was appointed by the court for Amanda upon the ground that she was insane and incompetent, and, by leave of the court, a complaint in intervention was filed on her behalf, in which the same facts were alleged as we re-alleged in the answer of Ezra. Upon the trial of the cause the court found in accordance with the allegations of this answer, and rendered judgment in favor of the intervenor. The plaintiff has appealed.
“Know all men by these presents: That I do hereby certify and declare that I am the head of a family, and that I do now at the time of making this declaration actually reside with my family on the land and premises hereinafter described [here follows a description]; that my family consists of myself and my four minor children, to wit: Lawrence McCallister, aged eleven years; Annie, aged fourteen years; Eliza, aged twelve years, and Khoda, aged six years. That it is my intention to use and claim the said lot of land and premises above described, together with the dwelling-house thereon and its appurtenances, as a homestead, and I do hereby select and claim the same as a homestead; that the actual cash value of said property I estimate to be two thousand dollars.” It is contended on behalf of the appellant that, inasmuch as he failed to state in the declaration that he was a married man, he is precluded from claiming the privileges incident to the homestead of a married man, and that the homestead must be considered as that of an “ other person,” provided for in chapter III of the title in the Civil Code relating to homesteads.
The mode in which a homestead is to be created, as well as the legal incidents which attach to its existence, are purely statutory. Section 1260 of the Civil Code declares that a homestead, not exceeding five thousand dollars in value, may be selected and claimed “ by any head of a family,” and in section 1261 the phrase “ head of a family” is declared to include the husband when the claimant is a married person. The homestead authorized by chapter III is for any person “ other than the head of a family.” Section 1262 of the Civil Code declares that the husband, or other head of a family, must execute and file with the recorder a declaration, which by section 1263 must contain “astatement showing that the person making it is the head of a family.” In Jones v. Waddy, 66 Cal. 457" court="Cal." date_filed="1885-02-26" href="https://app.midpage.ai/document/jones-v-waddy-5442002?utm_source=webapp" opinion_id="5442002">66 Cal. 457, it was held that a statement by the declarant that he is the head of a family is.*220 ■a statement of the ultimate fact required by this section, and is sufficient. It must be held, therefore, that the above declaration was sufficient to impress the land with the incidents of a homestead. McOallister was the head of a family, and so stated in his declaration, and he was also the husband of a living wife, and the property selected was the community property of himself and his said wife. As he was not required to state in his declaration whether he was married or who were the members of his family, the statement or omission of those facts did not impair the sufficiency of the declaration, or prevent its inurement to the benefit of his wife. By filing the declaration for record, the laud therein described was impressed with all the legal incidents which the statute gives to a homestead, one of which is ■an exemption from forced sale. (Civ. Code, sec. 1240.) The exception to this exemption which is provided in section 1241 has no application to the present case, for the reason that the mortgage set forth in the complaint was not executed by the husband and wife,” nor was McOallister at the time of its execution “ an unmarried claimant.” A declaration of homestead properly executed and acknowledged by a married man, when filed for record, immediately inures to the benefit of his wife, whether she is ignorant thereof or is fully acquainted with the transaction; nor does the fact that she is insane deprive her of its benefits, or give to the husband any greater interest in the estate, or authorize him to encumber it, except in the mode prescribed by statute. (Stats. 1873-74, p. 582.) The filing of the declaration for record is a notice to all who may thereafter deal with the property that, if the declarant is a married person, the homestead cannot be conveyed or encumbered “unless the instrument by which it is conveyed or encumbered is executed or acknowledged by both husband and wife.” (Civ. Code, sec. 1242.) Whether the declarant is a married person or not is a question of fact which must be determined by whoever would take a conveyance or encumbrance of the property; and no statement*221 or act of the husband alone can obviate the necessity of the wife uniting in the instrument of conveyance or encumbrance, or deprive her of her estate in the property. The record of the declaration is a sufficient notice-to all persons to put them upon inquiry; and, if they fail to make such inquiry or to take such steps as will protect them in their dealings with the husband, the loss should fall on them rather than on the wife, who-has in no respect contributed thereto.
Inasmuch as the plaintiff procured Mary McOallister, who is described as the wife of Ezra, to unite with him in the execution of the mortgage, it cannot contend that it relied upon the recorded declaration as affording a presumption that McOallister was unmarried. The representations by McOallister that she was his-wife, whether such representations were by direct statement, or the presumption arising from their having-lived together as husband and wife, were but self-serving declarations and representations on his part, and could not in any respect bind or affect the respondent. Whether Mary was, in fact, the wife of Ezra, or whether she personated his wife, was to be determined by the-plaintiff at its risk, and its reliance upon any statements or information to that effect given by Ezra cannot serve as a protection against the claim of Amanda, or be a substitute for the truth. Whether Ezra would be estopped from denying the validity of the mortgage, if he alone were affected, need not be considered. (See, however, Gagliardo v. Dumont, 54 Cal. 499.) It is very clear that Amanda is not estopped from asserting the invalidity of the mortgage by any act-of her husband, or from claiming to be his wife, by the fact that he has recognized another woman as such-
2. At the time the action was commenced the land described in the complaint was situate in the county of San Diego, and the action was commenced in the-superior court of that county, and was tried in that-court January 11, 1894. Subsequent to the commencement of the action the county of ¡Riverside was organ
The constitution, article VI, section 5, declares that, “All actions for the enforcement of liens” shall be commenced in the county in which the real estate or some portion thereof is situated; and at the time this action was “commenced” the property was situate within the boundaries of San Diego. The constitution does not, however, require that the action shall be “tried” in the county in which the property is situated, and the statutory provision in section 392 of the Code of Civil Procedure, that actions “ for the foreclosure of liens and mortgages on real property” must be tried in the county in which the subject of the action, or some part thereof, is situated, “ subject to the power of the court to change the place of trial,” shows that “ the place of trial ” is not an element going to the jurisdiction of the court, hut is a matter of legislative regulation. The provision for the transfer of certain actions to the superior court of the county of Riverside, which is contained in section 12 of the act providing for the organization of that county, shows the extent of this regulation which the legislature deemed necessary, and implies that only the actions there designated were to be transferred for trial.
3. There was no error in the appointment of a guardian ad litem for Amanda Fisher McCallister. She had an interest in the matter in litigation, and also an interest in the success of the defendant, Ezra McCallister. The court was therefore authorized, by section 387 of the Code of Civil Procedure, to permit her to become a party to the action. Having been thus - permitted to become a party to the action, and being insane, she
4. That portion of the judgment “that the plaintiff take nothing by this action” is not sustained by the other portions of the record. The defendant, Ezra McCallister, did not deny the execution of the note set forth in the complaint, and the plaintiff is entitled to a judgment thereon against him.
The judgment in favor of the intervener, Amanda Fisher McCallister, and the order denying a new trial as to her, are affirmed. That portion of the judgment that the plaintiff take nothing by this action is reversed, so far as the same applies to the defendant, Ezra McCallister, and the superior court is directed to enter a judgment against him upon the promissory note set forth in the complaint. The costs of this appeal will be taxed against Ezra McCallister.
Garoutte, J., and Van Fleet, J., concurred.