Schuler v. Savings & Loan Society

McKee, J. The appellant, Henry Schuler, was the owner of a brewery in Sonora, in this State, and he and his wife, the respondent herein, resided in two of the rooms of the brewery building. On or about September 1, 1874, the husband contracted to sell the property for three thousand dollars; one thousand dollars payable “in hand,” another thousand on or before the 1st of October next thereafter, and the remaining thousand on or before the 1st of November following. The wife, having heard of the sale, made and recorded a declaration of homestead upon the property on the 18th of September, 1874; and when the time came for the husband to perform his contract, she refused to join in the execution of the deed, unless [398]he would, secure her for her interest in the homestead claim. There was no evidence whether the property, before the making and filing of the declaration of homestead, was the separate property of the husband, or community property. In the absence of such evidence, the presumption is that it was community property (Althof v. Conheim, 38 Cal. 230), and when the declaration of homestead was made and recorded by the wife, the property became, by operation of law, the estate in joint tenancy of the husband and wife (§ 1265, Civ. Code of 1874), of which they were jointly seized in equal shares. It was, therefore, not part of their community property.

Recognizing the existence of the legal relation between himself and wife in respect to the property, the husband consented to secure her for her interest or estate in the homestead premises; and for that purpose he executed to her a transfer of a bank book which he had with the Savings and Loan Society of San Francisco, which showed on deposit in the bank a balance in his favor of about two thousand seven hundred dollars. The transfer was in the following words: —

“Sonora, October 22, 1874.

“Savings and Loan Society, 619 Clay Street.

“ Transfer to Rose C. Schuler the bal. of my account.

“ Henry Schuler.

“ Witness, D. Redmond.”

This transfer the husband delivered with the bank book to his wife, upon the receipt of which she abandoned the homestead by joining in the execution and delivery of the deed of ■ the property to the purchaser.