Pryal v. Pryal

California Supreme Court Mar 5, 1903 No. S. F. No. 2427Published

Before: Cooper

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Holding. The court held that a homestead selected from community property vests absolutely in the surviving spouse upon the death of the other, regardless of an intervening deed of gift between spouses, and that a statute of limitations defense not raised in the trial court is waived.

Issues

Whether a husband's deed of gift of homestead property to his wife destroys the homestead character or the right of survivorship.
Whether a wife's conveyance of community property without her husband's consent is valid.
Whether a statute of limitations defense can be raised for the first time on appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The homestead cannot be conveyed, nor encumbered in any way, so as to destroy its homestead character, unless the instrument by which it is sought to convey or encumber it is executed and acknowledged by both husband and wife.”

“The husband alone has the power to dispose of community property: Civ. Code, sec. 172; Parry v. Kelley, 52 Cal. 334. Therefore, the deed, made to defendant by his mother in her lifetime, did not convey the title.”

“Defendant will not be allowed to raise the question here for the first time”

Synopsis

Homestead — Deed from Husband to Wife—Death of Wife.— Code of Civil Procedure, section 1474, provides that if the homestead selected by the husband and wife be selected from community property, it vests absolutely in the survivor on the death of either spouse. A homestead selected from community property was deeded to the wife by a deed signed by the husband alone, and the wife alone deeded it to a third party. Held, that the deed from the husband did not destroy the homestead, nor the husband’s right of survivor-ship, and on the death of the wife the husband, and not the wife’s grantee, was entitled to the property.

Community Property—Conveyance by Wife—Action by Husband’s Heirs.—Act of March, 1897, amending Civil Code, section 164, so as to make a conveyance to a married woman by instrument in writing presumptive evidence that title is thereby vested' in her, provides that in cases where married women have conveyed real property which they acquired prior to May 19, 1889, “the husbands or their heirs or assigns, of such married women,” shall be barred from maintaining any action to show that the real property was community property, unless begun within one year from the date of the taking effect of the act. Code of Civil Procedure, section 434, declares that if no objection be taken to the complaint, either by demurrer or answer, defendant must be deemed to have waived the same, except, etc. Held, that where the wife’s grantees failed to object that an action by the husband’s heirs to recover alleged community property conveyed by her to them was not brought within the time prescribed by the act of 1897, they could not raise that objection on appeal.

COOPER, C. Action to quiet title to two separate pieces of real estate situate in Alameda county. Plaintiff had judgment and defendant appeals from the judgment on the judgment-roll.

[1351]. In November, 1867, plaintiff resided with his wife, Mary A. Pryal, upon the first piece of property described in the complaint, and on said day he made in due form a declaration of homestead thereon, which was duly recorded. At the time of making the declaration the property was community property, and it will be hereafter called the homestead. In the year 1879 the plaintiff, by deed of gift, signed by himself alone, conveyed the homestead to his wife. In August, 1896, the wife, by deed of grant, bargain and sale, purported to convey the homestead to defendant, the son of plaintiff and his deceased wife. Plaintiff, with his wife and family, resided upon the homestead from the date of the making thereof until the death of the wife, in September, 1896. In whom is the title to the homestead?

It is provided in Code of Civil Procedure, section 1474: “If the homestead selected by the husband and wife, or either of them, during their coverture, and recorded while both were living, was selected from the community property .... it vests, on the death of the husband or wife, absolutely in the survivor.” The homestead was selected from the community property, and hence vested, on the death of the wife, in the surviving husband. It is claimed by appellant that the deed made by the husband to the wife in 1879 had the effect of destroying the community character of the property, and making it thereafter the separate property of the wife. If we concede such to have been the effect of the deed, it does not follow that it destroyed the homestead, nor the right of survivorship therein given under the statute. The homestead cannot be conveyed, nor encumbered in any way, so as to destroy its homestead character, unless the instrument by which it is sought to convey or encumber it is executed and acknowledged by both husband and wife. The purpose of the law is to place it beyond the power of either spouse, acting alone, to destroy the homestead character impressed upon the real estate or to encumber it in any way. The deed of gift to the wife, therefore, did not in any way destroy the homestead, nor the rights of the husband and wife, or either of them, thereto as a homestead.

It is said that the deed to the wife did not affect the homestead, but made it thereafter a homestead upon the separate property of the wife, to be treated as if selected on her separate property, without her consent, for the reason that the

Pryal v. Pryal

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