Beck v. Soward
Before: McFarland, Searls
Synopsis
Homestead — Separate Property op Wipe—Acknowledgment op Declaration. —An acknowledgment of a declaration of homestead selected from the separate property of the wife must be made by the wife in strict accordance with section 1186 of the Civil Code. An acknowledgment stating that “she was by me first made acquainted with the contents thereof, and thereupon acknowledged to me, on examination separate and apart from and without the hearing of her husband,” etc., in the form provided by the statute prior to the code, is insufficient, because not showing that she was made acquainted with the contents of the instrument by the officer on an examination without the hearing of her husband.
Id. —Descent and Distribution of Homestead Property. — When the homestead is carved out of the separate property of the wife, and the wife dies intestate, leaving more than one child, it descends, one third to the husband, and the remaining two thirds in equal shares to the children, as provided in section 1386 of the Civil Code.
Opinion — Searls
Searls, C. J. This is an action to quiet title, brought by plaintiffs, the heirs of Millie C. Soward, deceased, against Bichard Soward, her husband.
The land in dispute was the separate property of Millie Soward, deceased. Defendant claims under the declaration of homestead set forth in the findings.
It is claimed by plaintiffs and respondents that the declaration of homestead upon the separate property of the wife was invalid upon the grounds: —
1. That it was not properly acknowledged by the wife;
2. That it did not show declarant was the head of a family;
3. That it did not show the estimated value of the property.
The homestead declaration was executed in November, 1880, and recorded December 10, 1880.
Section 1239 of the Civil Code provides that “the homestead cannot be selected from the separate property of the wife without her consent, shown by her making, or joining in making, the declaration of homestead.”
It follows that the wife was a necessary party to the declaration of homestead upon this, her separate property.
' The declaration must be executed and acknowledged in the same manner as a grant of real property is acknowledged. (Civ. Code, sec. 1262.)
“The acknowledgment of a married woman to an instrument purporting to be executed by her must not be taken unless she is made acquainted by the officer with the contents of the instrument on an examination without the hearing of her husband; nor certified unless She thereupon acknowledges to the officer that she executed the instrument, and that she does not wish to retract such execution.” (Civ. Code, sec. 1186.)
[530]In the present case the acknowledgment of decedent is certified to as follows:—
“And I do hereby further certify that the said Millie C., wife of Richard Soward, is personally known to me to be the person whose name is subscribed to said instrument as a party thereto, and that she was by me first made acquainted with the contents thereof, and thereupon acknowledged to me, on examination separate and apart from and without the hearing of her husband, that she executed the same freely and voluntarily, for the uses and purposes therein mentioned, without fear or compulsion, or undue influence of her said husband, and that she did not wish to retract the execution of tho same.”
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