Powell v. Patison

Fitzgerald, J. Action to foreclose a mortgage. Plaintiff had judgment, and'defendant appeals.

It appears that on the second day of October, 1877, the defendant, Henry Patison, was the owner and resided with his family on the premises in question; that on that day his wife, the defendant, Emma J. Patison, declared a homestead thereon, and that they continued to actually occupy the same up to the twenty-ninth day of August, 1887, and that the homestead so declared has never been abandoned; that on September 26,1884, the defendant, Henry Patison, made his promissory note to plaintiff for one thousand dollars, and to secure the payment thereof he mortgaged to plaintiff the homestead oremises; that on the 29th of August, 1887, the defendant, Henry Patison, obtained a divorce from his wife, the said Emma J. Patison, and the homestead premises were by the judgment assigned to him.

It is claimed by appellant that the court erred in decreeing a foreclosure of the mortgage, for the reason that when the mortgage was executed by the husband there was a valid and subsisting homestead on the premises sought to be mortgaged. Section 1242 of the Civil Code provides that “the homestead of a married person cannot be conveyed or encumbered unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both husband and wife.”

Under these provisions it is clear that the homestead cannot be conveyed or encumbered except by the joint act of the husband and wife. Hence a conveyance or mortgage thereof by the husband alone is inoperative "and void (Gleason v. Spray, 81 Cal. 220; 15 Am. St. Rep. 47; Gagliardo v. Dumont, 54 Cal. 496), and does not become valid by the premises subsequently losing their character as a homestead, if in this case it can be said that by the decree assigning to the husband the homestead premises they, by reason of that fact, lost their character as such, nor does a subsequently acquired title relate back so as to give effect to a void instrument. It therefore follows that as the mortgage herein was void [239]in its inception the defendant is not estopped from denying its validity, as would be the case if the mortgage itself was a valid instrument.

The claim that the court erred in rendering a judgment against the defendants on their promissory note secured by a valid deed of trust, and which was also sought to be foreclosed as a mortgage in this action (see case No. 18002 just decided by this court, ante, p. 234) must be sustained, for the reason that it is well settled on authority in this state that a “ personal judgment on a secured debt before the security has been legally exhausted is erroneous.” (Barbieri v. Ramelli, 84 Cal. 154; Crim v. Kessing, 89 Cal. 487; 23 Am. St. Rep. 491; Biddel v. Brizzolara, 64 Cal. 362.)