Gagliardo v. Dumont

Department No. 1, McKee, J.: On May 25th, 1867, the plaintiff in this action was the owner of the land and premises described in the complaint, and he and his wife, Anna Gagliardo, resided thereon. On that day, the husband made and signed a declaration in writing of his intention to claim the premises as a homestead, and on the same day executed a power of attorney to one Antonio Daneri, authorizing and empowering him to enter into and take possession of all the real estate which belonged to the plaintiff in the City and County of San Francisco, and sell and convey the same, or any part thereof, and execute and deliver to the purchaser or purchasers, good and sufficient deeds, etc. On the 30'th of May, 1867, the declaration of homestead was acknowledged and recorded, and on the same day the power of attorney was also acknowledged and recorded. On the 13th of April, 1872, Daneri, the attorney-in-fact of the plaintiff, by his deed duly executed under his power of attorney, sold and conveyed the homestead premises to one Stephen Sanguinetti, and the wife of the plaintiff joined in the deed. On the 14th of November, 1873, the wife died. Defendants are in possession of the premises, claiming the same by conveyance from Sanguinetti.

According to the provisions of the homestead law as it existed at the time of the transactions in this case, the plaintiff and his wife, who were entitled to the homestead premises in question, held the same—to the extent of the homestead value—in joint tenancy; and their alienation, incumbrance, or abandonment, was prohibited, except in the mode prescribed by the law itself.

Says the statute: “ No alienation, sale, conveyance, mortgage, or other lien, of or upon the homestead property, shall be valid or effectual for any purpose whatever, unless the same shall be executed by the owner thereof, and be executed and acknowledged by the wife, if the owner be married and the wife be a [499]resident of this State, in the same manner as provided by law in case of the conveyance by her of her separate and real property.” (Stat. 1862, p. 519, § 2.)

The law which created the estate, at the same time prescribed the mode of transferring it. Of the power of the Legislature to declare the nature of an estate in real property and to prescribe the modes by which it may be alienated, there can be no question. “No man,” says Mr. Justice Baldwin, in Lees v. De Diablar, 12 Cal. 327, “ has any vested right to dispose of any property, by whatever title he holds, in any way other than that which the law prescribes.” Under the restraints imposed by the homestead law, neither the husband nor the wife had power to transfer the homestead by a separate conveyance, nor could either incumber it to the prejudice of the other or of both, or to the destruction of the homestead itself. The obligation between them, in respect to its preservation, was reciprocal. Neither could, without the consent and concurrence of the other, alienate or transfer it. It was created as a place of residence for the family, and it is the policy of the law to preserve it intact for that purpose, until both the husband and wife shall mutually resolve to destroy it by alienation or abandonment. In pursuance of that policy its destruction is prohibited, except by the joint act of both in the mode provided by the homestead law. This is the settled doctrine of the Courts of this State. Thus, in Barber v. Babel, 36 Cal. 11, it was held that when once the homestead estate vested in the husband and wife, the husband could not by his act alone mortgage it, or by the execution of a new note and mortgage revive a prior mortgage given upon the land before the declaration of homestead was filed. And in Flege v. Garvey, 47 Cal. 371, where, after a homestead had been created, the husband became insane, and his guardian, under an order of the Probate Court of Sonoma County, sold and conveyed the homestead for the maintenance and support of the insane husband (as a ward of the Court) and his family, it was held that the sale was invalid, and wholly inoperative to pass the estate, although the wife had consented to it and received part of the proceeds of the sale.