Cohen v. Davis

Field, C. J. delivered the opinion of the Court—Cope, J. concurring. This is an action for the foreclosure of a mortgage executed by Davis and wife to the plaintiff and one Thomas, to secure the payment of the promissory note of Davis for the sum of $10,000, and [193]interest thereon. The premises are situated in Alameda county, and at one period had been occupied by Davis and wife as their homestead. The mortgage bears date the fifth of November, 1860, and at that time Davis and wife occupied a rented cottage in San Francisco; and Davis, whilst negotiating the loan for which the mortgage was given, represented that his family resided in San Francisco, and that he only visited the premises in Alameda to see to his business. The mortgagees, however, for greater protection, took from the parties a written declaration of them abandonment of all claim to the premises as a homestead, duly acknowledged by both—the acknowledgment of the wife being taken separately and apart from her husband. The declaration bears date on the thirty-first of October, 1860, but was acknowledged and delivered to the mortgagees in connection with the mortgage. Both were recorded at the same time—on the eighth of November, 1860. Subsequently, in March, 1861, Mrs. Davis filed a declaration, claiming the entire mortgaged premises as a homestead, under the Act of 1860. In November following, Davis himself filed a similar claim to a portion of the premises.

• The defense to the foreclosure is, that the premises, notwithstanding the declaration of abandonment, constituted the homestead of the parties until the declaration was recorded; and that the mortgage, having been executed- before such record was made, is invalid and void. The Court below held that the record of the declaration was essential to its efficacy as an abandonment of the homestead claim; but as it appeared the mortgaged premises exceeded in value the amount of the exemption allowed by law, it directed, upon the report of appraisers appointed for that purpose, a portion of the premises to be set apart to the parties as a homestead, and decreed a sale of the remainder. From the decree both parties appeal—the plaintiff objecting that the homestead claim was allowed against his mortgage, and the defendants objecting that the mortgage was held valid for any purpose.

In considering the question thus presented as to the efficacy of the mortgage, we shall assmne that the premises constituted, at the time of its execution, the homestead of the mortgagors. We shall not stop to notice the testimony, which creates some doubt on this point, or