Santa Cruz Bank of Savings v. Cooper

Ross, J.: Ejectment to recover a lot of land in the city of Santa Cruz. It appears, that, on the 24th of May, 1867, the defendant Frank Cooper was the owner and in the possession of the premises. He was then a widower, and was living there with his family, which consisted of his sister-in-law and his two minor children —a son twenty years of age, and a daughter fifteen years of age. On the day named, he filed a declaration claiming the premises, then worth $3,500, and at no time since exceeding $5,000 in value, as a homestead, and on the 25th of June, 1872, he married his present wife, Lucy S. Cooper, who, immediately after her marriage, went to reside with her husband upon the land, and has continued to reside there with him ever since. When the declaration was filed, the son was employed in a telegraph office, receiving and retaining his wages, boarding at home, and assisting in maintaining the family. Until October, 1867, the daughter was living with and entirely dependent upon her father for support. In 1868, she was teaching school and supporting herself elsewhere.

On the 19th of August, 1878, the defendant Frank Cooper executed to the plaintiff, for a valuable consideration, a deed of conveyance for the property, in which deed his wife did not join ; and it is now claimed by him, in defense to the present action, as well as by his wife, who was permitted by the Court below to intervene in the action, that the deed to the plaintiff was void because of the non-joinder of the wife therein.

On the part of defendants, it is contended that Frank Cooper acquired the homestead in question by virtue of his being the head of a family ; and that the right thus acquired inured upon his subsequent marriage to the benefit of his wife, and that thereafter the property could not be disposed of without the joint act of both husband and wife.

Section 5 of the amendatory Act of May 12th, 1862 (Stats. 1862, p. 519), which was in force at the time of the filing of the declaration and until the taking effect of the Codes, declared : “ No unmarried person shall be entitled to select or hold [341]a homestead, as prescribed in the preceding sections of said act, unless such person has the care and maintenance of his or her minor child, or of a minor brother or sister, or a minor child of a deceased brother or sister, or of a father or mother, or of a grandfather or a grandmother, or of an unmarried sister, then residing on the homestead property with such person.”