Flege v. Garvey

By the Court, Rhodes, J.: The plaintiff and her husband, Henry Flege, on the tenth day of December, 1860, made, acknowledged and filed a declaration of homestead, appropriating for that purpose the premises in controversy. In 1867, Henry Flege became insane, and a guardian of his person and estate was appointed by the Probate Court of Sonoma County; and in 1868, the guardian filed in that Court a petition for the sale of the land of Henry Flege, who was then, and still remains, insane; and such proceedings were had that the land was ordered to be sold, and it was afterwards sold by the guardian to the defendant. It having been discovered .that the description of the land in the petition and deed, and the intermediate orders, was defective, the Probate Court, upon the petition of the defendant, ordered a new deed to be executed.

The plaintiff, for recovery, relies on the declaration of ■ homestead, contending that the Probate Court has no authority in a case like the present, to order the homestead to be sold. The defendant relies upon the guardian’s sale, and contends that the plaintiff is estopped to deny its validity, because she knew of the pendency of the proceedings in the Probate Court, urged the sale, and received from the guardian a portion" of the proceeds thereof, and appropriated the same to the support of herself and her children.

The Homestead Act, as amended in 1860 (Stats. 1860, p. 311), provides that from and after the filing for record of the declaration of homestead, the husband and wife shall be deemed to hold the homestead property as joint tenants, ' that is to say, joint tenants, subject to the qualification and modifications laid down in the Act. The precise interest or estate which the wife acquires, or which either party holds [376]therein after the filing of the declaration of homestead, has never been defined; and the opinion in Barber v. Babel, 36 Cal. 14, indicates that the terms of the common law are inadequate to afford an accurate definition of the wife’s estate. But whatever maybe the nature of the estate which the husband and wife severally hold in the homestead property, the doctrine is well established that the property cannot be alienated by the voluntary act of either or both of the parties, unless it be done in conformity to the statute— the statute in force at the time of the attempted alienation. The second section of the Act, as amended in 1862, (Stats. 1862, p. 519) provides that the alienation, conveyance, declaration of abandonment, etc., shall be executed by the husband and also by the wife (if she be a resident of the State), and be acknowledged by her in the same manner as a conveyance of her separate real estate is required to be acknowledged. The statute has also provided for the disposition of the homestead property upon the death of the husband or wife, but no express provision is made in respect to its alienation or disposition in any manner in case of the lunacy, civil death or imprisonment of either party. The statute, as already remarked, requires the conveyance by which the title is to be transferred by the act of the parties, to be executed by both husband and wife, provided the wife be a resident of the State. This is the only proviso furnished by the statute, and the Court has no power to interpolate further provisos, by which the execution of the deed by the wife may, in certain other contingencies, be dispensed with. It is very apparent that it might be to the best interests of the parties, in some instances—as in case of the insanity, or the civil death of the husband or wife— to permit the property to be sold and conveyed without requiring the joint deed of both; but the Court cannot supply the defect in the statute in that respect.