Quackenbush v. Reed
Before: Temple
Synopsis
Homestead—Filing of Insufficient Declaration—Omission of Part of Acknowledgment in Record—Mortgage by Husband.—Where a declaration of homestead and the acknowledgment of it are in all respects perfect, the premises described in the declaration constitute a homestead from the time of the filing of the declaration for record, and the omission by the recorder of a part of the acknowledgment in copying the declaration into the proper book does not affect the validity of the homestead, as against a subsequent mortgage executed by the husband alone upon the homestead premises.
Id.—Constructive Notice—Location of Homestead.—Constructive notice is a creature of statute; and the statute has not made the record of the declaration of a homestead notice to any one, but the question as to the existence of a homestead depends solely upon compliance with the law authorizing the homestead, which, although requiring the declaration to be recorded, declares, that, from and after the filing for record of a declaration, the husband and wife shall be deemed to hold the homestead as joint tenants.
Id.—Construction of Homestead Law—Remedial Statute.—The homestead law is remedial, and is to be liberally construed in favor of the exemption.
Id.—Description in Declaration—Reference to Map and Deed.— Where the premises are described in the declaration of homestead by reference to a map made by a civil engineer and surveyor, as part of a certain rancho, and as particularly described in a recorded deed, the record of which is referred to in the declaration, and which sufficiently describes the premises, the description of the land in the declaration of homestead is sufficient.
Id.—Joint Intention of Husband and Wife Not Necessary.—The statute does not require a joint intention of the husband and wife to claim the premises as a homestead, hut allows either husband or wife to make and file the declaration; and this right cannot be taken from either by the refusal of the other to join in the claim.
Id.—Value of Homestead—Validity of Mortgage.—The homestead consists of the premises described in the declaration, and the question as to whether its value is more than five thousand dollars is not material to the validity of a mortgage executed by the husband alone upon the premises, and every attempt of the husband to convey or mortgage it is unavailing.
Temple, C. This is an action to foreclose a mortgage dated December 8, 1887, executed by Hugh Boyle, now deceased. Defendant Carmelita Natividad Boyle is the widow of Hugh Boyle, and was the wife of the decedent at the time of the execution of the mortgage, April 29, 1872. She, being then the wife of Hugh Boyle, made a declaration of homestead, which was in due form and properly acknowledged and duly filed for record in the recorder’s office of Marin county, where the property is situated, in which the mortgaged premises were claimed as a homestead. The mortgage was executed by the husband alone, and defendants now claim that it is void.
Plaintiff contends that the premises were not impressed with the character of a homestead, because,
1. The declaration, though duly filed for record, was not recorded; 2. It does not particularly describe the premises; and, 3. The declaration does not state that it was the intention of both husband and wife to claim the premises as a homestead, but only that it was the intention of the declarant (the wife) to claim such exemption.
Appellant also claims that,
1. That he was a purchaser for value without notice; 2. That the court erred in not permitting him to-amend his complaint, and avers that when the declaration was [497]filed the premises were of the value of thirty thousand dollars; also in not permitting him to show the present value of the premises that he might recover the excess.
The appeal is from the judgment, and from an order refusing a new trial.
The declaration was filed under the homestead law of 1860, HittelVs Laws, sec. 3541 et seq« The declaration was copied by the recorder into the proper book, but he omitted from the acknowledgment the words, “and who is personally known to me to be the person whose name is subscribed to the said annexed instrument as a party thereto.”
Section 1 of the act of 1860 reads as follows:
“The homestead, consisting of a quantity of land, together with the dwelling-house thereon and its appurtenances, not exceeding in value the sum of five thousand dokars, to be selected by the husband and wife, or either of them, or other head of a family, shall not be subject to forced sale in execution or any final process from any court, for any debt or liability contracted or incurred after the passage of the act to which this is amendatory. Said selection shall be made by either the husband or wife, or both of them, or other head of a family, declaring their intention, in writing, to claim the same as a homestead. Said declaration shall state that they, or either of them, are married, or, if not married, that he or she is the head of a family; that they, or either of them, as the case may be, are at the time of making such declaration residing with their family or with the person under their care and maintenance on the premises, particularly describing said premises, and that it is their intention to use and claim the same as a homestead; which declaration shall be signed by the party making the same, and acknowledged and recorded as conveyances affecting real estate are required to be acknowledged and recorded, and from and after the filing for record of such declaration the husband and wife shall be deemed to hold said homestead as joint tenants; and all homesteads heretofore appropriated
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)