Herrold v. Reen

Thornton, J.: This was an action to foreclose a mortgage, executed by the defendant to the plaintiff on a lot of land situated in San José. The defendant set up by answer as a defense the following :

“ Further answering, the defendant avers and shows to the Court, that on the 1st day of May, A. D. 1860, she and one Peter Reen were, and for a long time prior thereto had been husband and wife; and as such husband and wife they were the owners in fee of the land and premises described in the complaint herein as community property, and were then living in their dwelling-house thereon with their children; that thereafter, to wit, on or about the first day of August, A. D. 1860, while they were so the owners as aforesaid, and residing in their said dwelling-house on said property, they, as husband and wife, selected said land and premises, including their said dwelling-house and other lands adjoining, as a homestead for themselves and family, and to that end they in due form of law, and in writing made, executed, acknowledged, and recorded in the office of the County Recorder of Santa Clara County, their declaration of homestead upon said property, a copy of which declaration, marked 'Exhibit A,’ is hereunto attached and made a part of this answer; and defendant avers and charges that said declaration was made, signed, acknowledged, and recorded for the purpose of claiming the land and premises therein described (including the premises described in this action) as a homestead, under the act of the Legislature of this State, approved April 28th, 1860, and that said homestead has never been abandoned in whole or in part by said Peter Reen, or by this defendant or by both of them.

“ Defendant further alleges, that afterwards and on or about? the 3d day of April, 1865, her said husband, Peter Reen, died, leaving him surviving this defendant and three children— [445]Peter Been, Daniel 0. Been, and Edward Been—all of whom were minors 'under fourteen years of age; that two of said children, viz., Daniel 0. Been and Edward Been, are yet under twenty-one years of age; and she further avers and charges that she and her said children have continued to reside on said premises ever since the making, signing, acknowledging, and recording of the declaration of homestead, hereinbefore mentioned, and do yet reside thereon, claiming said premises, and the whole thereof, as a homestead. She further alleges that after the death of her said husband, and upon petition, to wit, on the 14th day of February, A. D. 1874, the Probate Court of the County of Santa Clara, in the State of California, by its order and judgment in that behalf duly given and made, set apart said premises to her as a homestead for her benefit and that of her said children. She further avers and charges that the mortgage sought to be foreclosed in this action by reason of the facts herein alleged is null and void; that said mortgage was made and signed by her, long-after the death of her said husband, and was not made to secure or pay the purchase money of said homestead premises or any part thereof. Defendant further alleges, that at the time of selecting said premises as a homestead, and the filing of said declaration of homestead, they did not exceed in value the sum of five thousand dollars, nor did they at the time of the death of her said husband.”