In re Estate of McCauley

¡By the Couet: It is provided by section 1465, Code of Civil Procedure, that if no homestead has been selected, designated and recorded, the court must select, designate, set apart and cause to be recorded a homestead “in the manner provided in Article II of this chapter, out of the real estate belonging to the decedent.” By the amendments of 1873-4 to the Code of Civil Procedure (section 180), those sections of Article II, which provided the mode for the setting apart of a homestead where none had been selected, were repealed. The Code of Civil Procedure, however, contains, the following provisions:

“Seo. 187. When jurisdiction is, by this Code or by any other statute, conferred on a court or judicial officer, all the means necessary to carry it into effect are also given, and in [546]the exercise of the jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted, which may appear most conformable to the spirit of this Code.”

The 1465th section, above cited, gives the right to have a homestead set apart, and confers upon the court the power to act in the premises, and cause a homestead to be selected and set apart for the use of the persons entitled thereto. The mode of proceeding adopted by the court in this case appears to be both suitable and proper. (See Mawson v. Mawson, ante, p. 539.)

It was found that the property from which it was sought to select the homestead was subject to three mortgages, executed by the testator; that the land exceeded $5000 in value, and that it was incapable of partition without material injury; and it was ordered that the property be sold, subject to the liens of the mortgages.

The appeal is taken from that portion of the order requiring the property to be sold, subject to the mortgage liens. The section of the Code requiring the court to set aside a homestead (Sec. 1465) does not provide that it shall be set aside clear and free from all incumbrances; does not declare that the order setting apart the homestead shall destroy or in any manner impair any lien upon the property; nor does any provision of the Code, to which our attention has been directed, so declare. Even assuming that such an act would be free from objections of a constitutional character, yet in the absence of an express provision to that effect, or of provisions clearly showing that such was the intent of the Legislature, we would not be justified in holding that the setting apart of a homestead destroyed or impaired the lien of a valid mortgage executed by the testator.