Revalk v. Kraemer

Burnett, J., after stating the facts in the case, delivered the opinion of the Court—Murray, C. J., concurring. The plaintiffs should have brought their suit in the District, and not in the Superior Court. When the plaintiff, John Revalk, appeared and answered in the case brought by defendants, Kraemer and Eisenhardt, to foreclose the mortgage, the plaintiffs in that suit—defendants in this—should have insisted that Mrs. Revalk be made a party. Revalk and wife not appearing in that suit, could not bring a suit in the Superior Court to restrain the decree of a Court of co-ordinate jurisdiction. John Ritts and wife v. Wm. iSTeely Johnson, and others, decided at the present term of this Court.

This would be sufficient to dispose of this case, but as other points are raised by the record, and discussed by counsel on both sides, and must be decided sooner or later, to settle this controversy, we will proceed to their examination.

The first point made by the counsel for the defendants is :

“ That inasmuch as the property in question was owned by John Revalk before his marriage, and was therefore separate property, there could be no homestead created of it by the mere residence of the wife thereon, before marriage.”

The fifteenth section of article eleven of the Constitution, provides, “ that the Legislature shall protect, by law, from forced sale, a certain portion of the homestead and other property of all heads of families.”

In this provision, the homestead to be protected, is called the property of the head of the family. And in the first and second sections of the act to exempt the homestead and other property from forced sale, (Com. Laws, 850,) the head of the family is called “ the owner ” of the homestead.

It would seem clear, from these provisions, that the separate property of the husband may become the homestead, as well as the community property acquired after marriage. It is the duty of the husband to furnish a home for the family, and the taking the wife to reside upon his separate property, is the voluntary act of the husband, and by this act he makes it the homestead, with all the incidents attached to it.

But it may admit of great doubt whether the separate property of the wife can become the homestead. There is an express provision of the Constitution which says, that all property of hers acquired in a certain manner, shall be her separate property. Article XI, § 14. There is no such provision in reference to the husband. This being a constitutional provision, it may admit of much doubt, whether the mere act of the wife, of residing with her husband on the premises, can be construed into a change of her right with respect to her separate property. It is her duty to live with her husband, and her removal with him from the homestead has been held no abandonment. 4 Cal. Rep., 273;