Taylor v. Hargous

4 Cal. 268 | Cal. | 1854

Mr. J. Heydenfeldt

delivered the opinion of the Court.

Mr. Ch. J. Murray concurred.

In Cook v. McChristian (ante p. 23), we decided that the Homestead Law required no specific act to indicate thé selection of a homestead, and that the occupancy of .the family was presumptive evidence of the appropriation of the place as a homestead, and was consequently notice to all the world.

The main difference between this case and that of Cook v. McChristian consists in the fact, that here the husband and * wife remove from the premises, after .a [273] sale by the husband in which the wife did not join, and it is argued by the appellant that this was evidence of an abandonment of the homestead, and the acquisition of a new one.

It seems to me, on the contrary, to be the very case against which the statute intends to provide. If the husband can sell at pleasure, and remove to another place, without the consent or approbation of the wife, then the design of the statute to protect her against the improvidence, misfortunes or misconduct of the husband, would be totally nugatory.

As soon as a place, by the occupancy in good faith, of the family, acquires the nature of a homestead, the nature of the estate becomes changed, without reference to the manner in which the title to the property originated, whether it was the separate estate of either husband or wife, or the common property of both. It is turned into a sort of joint tenancy, with the right of survivorship, at least as between husband and wife, and this estate cannot be altered or destroyed, except by the concurrence of both, in the manner provided by law.

The conveyance by the husband alone, is declared by the statule to be void, and this rule cannot be subverted, unless it be in favor of an innocent purchaser, without notice.

It is argued for the appellant, that if during several years husband and wife buy several homesteads, live in them for a time, and then the husband sells, the wife, after the death of the husband, may sue for and recover them all. Although it is not called for by any of the facts in this case, yet I have no hesitation in saying, in answer to the argument, that no such consequence could follow; because we have said that occupancy is only presumptive evidence of homestead, and therefore, when the wife has recovered one homestead, this recovery would completely rebut the presumption which occupancy might raise, in reference to any other for which she might bring suit.

The other matters, argued by the appellant, are not made sufficiently prominent by the evidence to entitle them to a separate consideration.

Judgment affirmed.

Note. — Homestead, joint estate with right of survivorship, approved in Poole v. Gerrard, 6 Cal. 73. Qualified in Revalk v. Kraemer, 8 Cal. 73. Cited in Estate of Buchanan, Id. 509; Estate of Tompkins, 12 Cal. 125. Disapproved in Gee v. Moore, 14 Cal. 477; McQuade v. Whaley, 31 Cal. 530. See Pease v. Barbiers, 10 Cal. 440; Bowman v. Norton, 16 Cal. 213; Brennan v. Wallace, 25 Cal. 114. Homestead Law, construction of — Commented on in Holden v. Pinney, 6 Cal. 235. Removal of husband not an abandonment, in Dorsey v. McFarland, 7 Cal. 345; Revalk v. Kraemer, 8 Cal. 71; Moss v. Warner, 10 Cal. 297. Abandonment a question of fact, cited in Brennan v. Wallace, 25 Cal. 114. On what property may be established, in Gimmy v. Doane, 22 Cal. 638. Occupancy essential, in Beecher v. Baldy, 7 Mich. 504. See 29 Ark. 292; 31 Ark. 150.