Security Loan & Trust Co. v. Kauffman

California Supreme Court Jul 22, 1895 No. No. 19497Published

Before: Harrison

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Holding. A homestead declaration by a married man is valid even if he omits his marital status, and a mortgage on such property is invalid without the wife's signature; however, the mortgagee remains entitled to a personal judgment against the husband on the underlying note.

Issues

Whether a homestead declaration is valid if the declarant fails to state he is married.
Whether a mortgage on homestead property is valid if the wife did not join in its execution.
Whether the superior court lost jurisdiction over a foreclosure action when the land was moved to a newly created county after the action commenced.
Whether the court properly appointed a guardian ad litem for an insane intervenor.

Disposition. Affirmed in part, reversed in part, and remanded.

Quotations verified verbatim against the opinion

“It must be held, therefore, that the above declaration was sufficient to impress the land with the incidents of a homestead.”

“A declaration of homestead properly executed and acknowledged by a married man, when filed for record, immediately inures to the benefit of his wife”

“The defendant, Ezra McCallister, did not deny the execution of the note set forth in the complaint, and the plaintiff is entitled to a judgment thereon against him.”

Synopsis

Homestead—Modes and Incidents Statutory.—The mode in which a homestead is to be created, as well as the legal incidents which attach to its existence, are purely statutory.

Id.—Declaration by Head of Family—Eights of Wife not Named.— A declaration of homestead by one who declares that he is the head of the family, and that his family consists of himself and four minor children, and following the statute in other respects, is sufficient to impress the land with the incidents of a homestead, including exemption from forced sale, and if the husband is in fact a married man, and the property upon which the homestead is declared is community property, the husband cannot make a valid mortgage upon the homestead which is. not executed by both husband and wife.

Id.—Contents of Declaration—Membership of Family.—A statement, by the declarant of a homestead that he is the head of the family is a statement of the ultimate fact required by the statute, and he is not. required to state in the declaration whether he is married or who are-the members of his family, and the statement or omission of those facts, does not impair the sufficiency of the declaration, or prevent its inurement to the benefit of his wife.

Id.—Insanity op Wipe.—The fact that the wife is insane cannot deprive her of the benefits of the homestead, or give to the husband any greater interest in the estate, or authorize him to encumber it, except in the mode provided by statute.

Id.—Effect of Declaration—Notice of Rights.—The filing of a declaration of homestead for record is a notice to all who may thereafter deal with the property that, if the declarant is a married person, the homestead cannot be conveyed or encumbered unless the instrument is executed or acknowledged by both husband and wife, and the record of the declaration is a sufficient notice to all persons to put them upon inquiry as to the rights of the wife, and, if they fail to make such inquiry, the loss should fall on them rather than on the wife.

Id.—Execution op Mortgage by Woman Falsely Described as Wife —Wipe not Estopped.—No statement or act of the husband alone can obviate the necessity of the wife uniting in the instrument of conveyance or encumbrance of the homestead, or deprive her of her estate in the community property upon which it is declared; and the fact that the husband procures another woman who is described as his wife to unite with him in the execution of the mortgage, cannot serve as a protection against the claim of the wife, or estop her from denying the validity of the mortgage.

Foreclosure op Mortgage—Creation op New County—Jurisdiction. The constitution only requires actions for the enforcement of liens to be commenced in the county in which the real estate or some portion thereof is situated, and, where a new county is created after the commencement of the action in which the property affected by the .lien is Situated, the change of the place of trial is not an element going to the jurisdiction of the court, but is a matter of legislative regulation, and is to be determined by the terms of the act providing for the organization of the new county.

Harrison, J. The plaintiff seeks by this action te foreclose a mortgage purporting to have been executed to it by the defendants, Ezra McCallister and Mary Mc-Callister, “his wife.” The execution of the mortgage- and note was not denied by either of these defendants. The defendant Ezra, in his answer, alleged that his co-defendant Mary was not his wife; that he was married in February, 1867, to one Amanda Fisher, and that shell ad ever since that date been his lawful wife; that on June 5, 1883, he was residing with his family on the premises described in the mortgage, and on that-day made and filed with the county recorder a declaration in which he claimed the said premises as his homestead; that the land was community property of himself and his said wife Amanda; that the homestead had never been abandoned, and that the said Amanda did not join in the execution of the mortgage, and that she was a necessary party to the action. A guardian ad litem was appointed by the court for Amanda upon the ground that she was insane and incompetent, and, by leave of the court, a complaint in intervention was filed on her behalf, in which the same facts were alleged as we re-alleged in the answer of Ezra. Upon the trial of the cause the court found in accordance with the allegations of this answer, and rendered judgment in favor of the intervenor. The plaintiff has appealed.

[2191]. The declaration of homestead filed by the defendant, Ezra McCallister, was as follows:

“Know all men by these presents: That I do hereby certify and declare that I am the head of a family, and that I do now at the time of making this declaration actually reside with my family on the land and premises hereinafter described [here follows a description]; that my family consists of myself and my four minor children, to wit: Lawrence McCallister, aged eleven years; Annie, aged fourteen years; Eliza, aged twelve years, and Khoda, aged six years. That it is my intention to use and claim the said lot of land and premises above described, together with the dwelling-house thereon and its appurtenances, as a homestead, and I do hereby select and claim the same as a homestead; that the actual cash value of said property I estimate to be two thousand dollars.” It is contended on behalf of the appellant that, inasmuch as he failed to state in the declaration that he was a married man, he is precluded from claiming the privileges incident to the homestead of a married man, and that the homestead must be considered as that of an “ other person,” provided for in chapter III of the title in the Civil Code relating to homesteads.

Security Loan & Trust Co. v. Kauffman

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