Hansen v. Union Savings Bank

McFARLAND, J.

This is an action to quiet title to a certain described lot of land. Judgment went for defendant, and the plaintiff appeals from the judgment.

On August 26, 1895, the lot in question was owned by appellant’s husband, Jens Hansen, since deceased, as com

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munity property, and on that day he mortgaged it to respondent to secure his note for six hundred and fifty dollars. Afterwards respondent brought an action to foreclose the mortgage, making "said Jens and appellant herein both parties defendant. They both made default, and judgment was rendered foreclosing the mortgage, and at a sale under the judgment respondent was purchaser, and in due time received a deed. On May 12, 1895, before the execution of the said mortgage, appellant made and caused to be recorded the following instrument: “Know all men by these presents, that I do hereby certify and declare that I am married, and that I do now, at the time of making this declaration, actually reside with my family on the land and premises hereinafter described. [Then follows the description of the lot of land involved in this present action.] 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 the said property I estimate to be twenty-five hundred dollars.” The foregoing is all of the instrument except the date, signature, and acknowledgment. At that time she was the wife of Jens Hansen, and resided on the premises with him; and there was not residing on said premises any one of the persons mentioned in section 1261 of the Civil Code, other than her husband. This instrument was clearly invalid as a declaration of homestead by a married woman living with her husband, because it omitted certain material statements required by the law. By section 1262 of the Civil Code it is provided-that “in order to select a homestead the husband, or other head of a family, or in case the husband has not made such selection, the wife,” must execute and acknowledge a declaration of homestead; and in section 1263 it is provided that “the declaration must contain a statement showing that the person making it is the head of a family; or, when the declaration is made by the wife, showing that her husband has not made such declaration, and that she therefore makes the declaration for their joint benefit.” These statements last above quoted are not in the instrument relied on in the case at bar, andoit therefore does not constitute a valid declaration of homestead.