Kennedy v. Gloster
Before: Belcher
Synopsis
Homestead—Land Situated in Two Counties—Duplicate Declaration—Successive Filings.—It is not necessary in order to constitute a valid homestead upon a tract of land situated partly in two counties that the same declaration or paper should be filed in each county; but it is sufficient if the declaration is executed in duplicate, and a separate one is filed in each county. In such case the filing of one of the copies a few days later than the filing of the other is not an attempt to select a second homestead while the first is in force.
Id.—Effect of Duplicate Instbument.—An instrument executed in duplicate is in effect but one instrument.
Id— Selection of Fabm Subdivided into Fields — Sale of Pastubage and Hat —Place of Business. —A tract of land used as a farm by its owners, and upon which is situated their dwelling-house may be selected as a homestead, although the tract is subdivided into separate fields; and the facts that the owners of the land pastured thereon cattle belonging to others, when there was more pasturage than was necessary for their animals, and that they sold some of the hay grown thereon when they had more than their animals could consume in the winter, do not make the farm such a place of business as to prevent its selection as a homestead.
Id. — Definition of “Homestead”—What It Mat Include. — The word “homestead,” as used in the constitution and statute, is used in its ordinary or popular sense, and represents the dwelling-house at which the family resides, with the usual and customary appurtenances, including out-buildings of every kind necessary or convenient for family use and lands used for the purposes thereof. If situated in the country it may include a garden or farm; if in a city or town it may include one or more lots, or one or more blocks.
Id. — Abandonment of Homestead—Deed Intended as Mortgage. — The execution of an instrument in the form of a deed, but which is given only as a mortgage, does not pass the title, and cannot operate as a grant of the property described therein, so as to constitute an abandonment of a homestead.
Id.—Invalid Acknowledgment of Declaration by Married Woman—Mandatory Statute.—The requirement of section 1262 of the Civil Code that a married woman’s acknowledgment of a declaration of homestead must he taken and certified in the manner prescribed by section 1186 of the same code, is imperative, and a declaration containing a certificate of acknowledgment by her, not taken in substantial conformity to the requirements of the statute, is not entitled to record, and if filed and recorded will not constitute a homestead.
Id. — Mortgage by Husband upon Tract Including Homestead—Validity. — Where a mortgage is given by the husband alone upon a tract of land, upon part of which there is a valid homestead, the mortgage is void as to the portion upon which the homestead is situated, and valid as to the remainder.
Belcher, C. 1874, and for several years prior thereto, the defendant, D. M. Gloster, was the owner of a tract of land, situated partly in Plumas County and partly in Sierra County, in this state, the part in Sierra County being described as the northwest quarter of a certain section 5. He was a married man, and the land was all community property. There was a dwelling-house on the quarter-section in Sierra County, in which he with his wife and children then lived, and has ever since lived. The whole tract was enclosed by a fence, but was subdivided into separate fields, a portion of the land being used for pasturing stock, and a portion for raising hay; and around his house was also a fence which enclosed about two acres.
On September 1,1874, Mrs. Gloster, the defendant Catherine, for the joint benefit of herself and husband, executed in duplicate a declaration of homestead upon the whole tract. Each copy of the declaration was separately acknowledged by her in proper form, and one of them was filed for record in Sierra County on the 5th, and the other in Plumas County on the 9th of the same month.
On December 21, 1875, Mr. and Mrs. Gloster executed to Michael Coffey and Margaret Gloster a deed absolute in form of all that part of the land situate in Plumas County. The deed was given to secure the payment of an indebtedness from Mr. Gloster to the grantees, and on its payment, in July, 1879, they reconveyed the property to him. Meantime he remained in possession of the land, using it as before.
On November 17, Í886, Mrs. Gloster, for the joint benefit of herself and husband, executed in duplicate a new declaration of homestead upon all the land described in the declaration of 1874, and two other quarter-sections, one situate in Plumas County, and the other in Sierra County. Each copy of this declaration was in fact properly acknowledged by her, but the certificates of acknowledgment were defective in form in that they failed to state, as required by statute, that upon an examination, without the hearing of her husband, she was made acquainted with the contents of the instrument. One of the copies was filed for record in Plumas County, and the other in Sierra County on the twenty-second day of the same month.
On January 23,1888, the defendant, D. M. Gloster, executed [146]a mortgage to the plaintiff’s assignor upon all the land in Plumas County described in the homestead declaration of 1874, and upon the two quarter-sections in Sierra County described in the declaration of 1886.
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