Freiermuth v. Steigleman

CHIPMAN, C.

Foreclosure. The court found on sufficient evidence that defendant and one Jacob Steigleman, for many •years prior to April

25,

1876, and thenceforward were, and now are, husband and wife; that on July 9, 1892, defendant made and delivered her promissory note to her husband, and to secure the same executed at the same time a mortgage on certain four separate tracts of land; that long prior thereto, to wit, on April 25, 1876, defendant in due form of law executed and recorded her declaration of homestead on the first three of the tracts embraced in the mortgage, and that they were the community property of the husband and wife; that defendant’s husband did not join in making this mortgage or the note; that on December 10, 1892, Jacob assigned the note and mortgage to plaintiff. The court made a decree foreclosing the mortgage as to the fourth tract, but found that plaintiff was not entitled to a decree of foreclosure as to the first

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three tracts. The appeal is from the judgment and from an order denying plaintiff’s motion for a new trial.

The sole question presented is, Did the mortgage convey these homesteaded lands as security for the note?

Section 158 of the Civil Code provides that: “Either husr band or wife may enter into any engagement or transaction with the other .... which either might do if unmarried,” etc. Undoubtedly, the wife may ordinarily mortgage her separate property to her husband.

It has been held that although the wife cannot create a lien on the community property by mortgage, yet the mortgage is not void in the extreme sense; and if the husband afterward dies and the wife inherits the property, the mortgage becomes a lien on the interest thus inherited by the wife, subject to the payment of the debts of the estate.

(Parry v. Kelley,

52 Cal. 334.) But we have no such case here. Where the community property is impressed with the character of the homestead, it cannot be conveyed or encumbered unless the instrument by which this is attempted to be done is executed by both husband and wife (Civ. Code, sec. 1242); nor can the homestead be abandoned except by a declaration of abandonment or grant thereof, “executed and acknowledged by the husband and wife, if the claimant is married.” (Civ. Code, sec. 1243;