Dixon v. Russell

NOURSE, J., pro tem. Joseph J. Russell and Doris E. Russell married in 1931. In May, 1932, they acquired, as community, the property in suit, a lot in Marin County. In April, 1934, the wife recorded a homestead on the property for the joint benefit of herself and husband. In August, 1934. the wife executed a quitclaim deed to this property with her husband as grantee and, at the same time, the husband executed three quitclaim deeds to the wife covering other community property, and also executed a deed of trust on the property in suit to secure an indebtedness payable to the wife. All these instruments were recorded, and each of the quitclaim deeds contained a clause reading: "Hereby releasing and waiving all rights under and by virtue of the Homestead Exemption laws of the State of California.” These papers were executed as a part of a property settlement in a pending divorce proceeding, but the record does not disclose anything further than that the proceeding was commenced and that these documents were recorded. The wife thereafter asserted a homestead right in the property in suit, and this action was brought by the husband on July 5, 1935, to quiet title to this parcel. Before answer was filed the husband died, and his executrix was substituted as plaintiff herein. The defendant, [264]in her answer, asserted that the property was subject to the trust deed and the homestead and that, since the homestead had been selected from community property, the entire estate went to her upon the death of the husband. The defendant had judgment, and the plaintiff appeals, presenting the single question whether the conveyances of August, 1934, operated as an abandonment of the homestead.

The appellant takes the position that, since the instruments were executed at the same time and as part of one entire transaction, they should be held to constitute an abandonment of the homestead. The respondent relies upon the strict terms of the statute requiring a declaration of abandonment to be signed by the husband and wife and argues that an abandonment is effectual only when both husband and wife execute the same instrument.

The pertinent statutory provisions are found in sections 1242, 1243, and 1244 of the Civil Code, which read: “1242. How conveyed or encumbered. 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. 1243. How abandoned. A homestead can be abandoned only by a declaration of abandonment, or a grant thereof, executed and acknowledged: (1) By the husband and wife, if the claimant is married; (2) By the claimant, if unmarried. 1244. Same. A declaration of abandonment is effectual only from the time it is filed in the office in which the homestead was recorded.”