Bowman v. Norton

California Supreme Court Jul 1, 1860Published

Before: Field

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Holding. Mortgages executed by a husband on homestead property without his wife's signature are not void, but merely unenforceable while the property retains its homestead character. Upon the voluntary conveyance of the property by the husband and wife, the homestead right is relinquished, rendering the property subject to the previously existing mortgage liens.

Issues

Whether mortgages executed by a husband on homestead property without his wife's signature are void or merely unenforceable against homestead rights.
Whether a decree in insolvency discharges or impairs existing mortgage liens on homestead property.
Whether a joint conveyance of homestead property by husband and wife removes the homestead restriction and allows for the enforcement of mortgage liens.

Disposition. reversed

Quotations verified verbatim against the opinion

“the mortgages in the present case were not absolutely void, but were invalid only to the extent required for the protection of the husband and wife in the enjoyment of their homestead rights.”

“The decree in insolvency did not discharge or impair the lien of the mortgages.”

“The conveyance, in transferring the estate, necessarily operated as a relinquishment of those rights; and the inhibition against the enforcement of the mortgages thereupon ceased.”

Synopsis

Gee v. Moore (14 Cal. 472) as to the power of the husband alone to alienate the homestead subject to certain restrictions, etc., affirmed.

Under the Act of 1851, prior to its amendment in 1860, mortgages upon the homestead, executed by the husband alone, were not absolutely void, but were invalid only to the extent required for the protection of the husband and wife in the enjoyment of their homestead rights.

Where, under the Act of 1851, both husband and wife unite in a conveyance of the homestead, the homestead rights are relinquished, and persons to whom the husband alone had mortgaged the homestead previous to such conveyance, may enforce their mortgages against the property in the hands of the grantee.

The Act of 1860 materially changes the provisions of the Act of 1851, and renders any mortgage hereafter of the homestead, except to secure or pay the purchase money, invalid for any purpose whatever.

A conveyance by the husband and wife of the homestead does not transfer the homestead rights. Such rights may be released and abandoned, but are, in their nature, incapable of sale and transfer. The exemption from forced sale is the personal right of both husband and wife, and the restraint upon the husband’s power of alienation is the personal right of the wife alone, and they cannot be assigned to others.

A decree in insolvency, discharging the husband and setting apart to him certain premises as a homestead, does not discharge or impair the lien of a mortgage thereon previously executed by the husband. The mortgagee has vested rights which could not be thus divested; nor was such the intention of our Insolvent Act.

In this State, a judgment cannot become a lien upon the homestead. It can become a lien only upon the real property of the judgment debtor.

Field, C. J. delivered the opinion of the Court Cope, J. concurring.

This is a suit to quiet the title to certain premises situated within the [216]city of San Francisco, and grows out of the following facts: In 1853, the defendant, Norton, was the owner of a fifty vara lot in the city, and having erected a dwelling house thereon, occupied it with his family, claiming the property as his homestead. In July of that year, he executed a mortgage upon the premises to the defendant, Barker, to secure the payment of his promissory note of $4,000, with interest. In November following, he executed a second mortgage upon the same premises to the defendants, Drexel, Sather & Church, to secure the payment of another note for the like sum of $4,000 with interest. Both mortgages ■were executed without the signature of the wife. After the maturity of the notes, the mortgagees instituted proceedings for the foreclosure of the mortgages and the sale of the premises, and obtained the usual judgments in such cases. The judgment in favor of Drexel, Sather & Church was rendered in March, 1855, and the judgment in favor of Barker was rendered in April, 1855. In July following, Norton filed a petition in insolvency in the District Court of the Fourth District, praying to be discharged from his debts and liabilities, and in the final decree, rendered upon the proceedings consequent thereon, in August, 1855, the Court set apart the fifty vara lot referred to, with the house thereon, as a homestead, for the use of the petitioner and his family, without mentioning the mortgages as incumbrances upon the property.

In November, 1855, Norton and his wife conveyed by their joint deed, for the consideration of $3,500, a portion of the lot to the plaintiff, who brings the present suit to quiet his title against the claims of the defendants, asserted by virtue of their respective mortgages and judgments thereon.

Upon these facts, three questions are presented for consideration: 1st. Whether the mortgages to the defendants were absolutely void, or only invalid against the assertion of the homestead right; 2d. Whether, if not absolutely void, the liens of the mortgages were lost or impaired by the decree in insolvency; and 3d. Whether, if the liens were not lost or impaired, the conveyance of the premises to the plaintiff removed the restriction of the statute, and rendered them subject to forced sale under the judgments recovered upon the mortgages.

1. The first question was determined by the decision in Gee v. Moore, rendered at the October term. In that case we had occasion to consider the nature of the estate which the husband possesses in the homestead premises, and the restraint imposed by the Act of 1851 upon its aliena

Bowman v. Norton

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