Gleason v. Spray

Gibson, C. Ejectment to recover certain lots in the town of Alturas, Modoc County. Trial before the court without a jury; judgment for defendants, from which and an order denying a new trial plaintiffs appeal.

The court found and adjudged that the principal instrument, in the form of a deed absolute, relied upon herein for a recovery was intended and accepted as a mortgage; and that the same, having been executed by the husband alone while the property in controversy was a homestead, was void and of no effect.

The defendant J. D. Spray, while the owner of and residing with his wife upon the property, on October 20, 1884, made, acknowledged, and caused to be recorded a declaration of homestead embracing the same property. And on April 7, 1885, while the homestead thus created was still subsisting, he, Spray, executed and delivered to George M. Gleason, one of the plaintiffs, a general warranty deed, absolute in form, embracing the homestead, with other real property. This deed the court found was intended as a mortgage. Thereafter, on May 25, 1885, the defendants, Spray and wife, by a joint declaration to that effect duly filed in the proper office, abandoned the homestead. On May, 26, 1886, George M. Gleason, by a deed of gift, conveyed to Julia, his wife, the same property described in Spray’s deed to him.

The first question arising on these facts is,as to whether the deed of Spray to Gleason was absolutely void or only inoperative against the homestead while it existed as such.

It does not clearly appear whether the property in question was the separate property of Spray, or the community property of himself and wife; but whatever its character may have been, it was, by the declaration of homestead, converted into the joint property of both. (Civ. Code, sec. 1265; Burkett v. Burkett, 78 Cal. 310.)

“ The homestead of a married person cannot be conveyed or encumbered, unless the instrument by which it [220]is conveyed or encumbered is executed and acknowledged by both the husband and wife.” (Civ. Code, sec. 1242.) In the homestead act of 1860, as amended in 1862 (Stats. 1862, sec. 2, p. 519), a similar provision is found; it reads as follows: “No alienation, sale, conveyance, mortgage, or other lien of or upon the homestead property shall be valid or effectual for any purpose whatever, unless the same be executed by the owner thereof, and be executed and acknowledged by the wife, if the owner be married, and the wife be a resident of this state, in the same manner as provided by law in case of the conveyance by her of her separate and real property.”