Page images
PDF
EPUB

Brennan v. Marsh-Tyler v. Decker.

who was Loring's bailee, and who was directed by Loring to pay to plaintiff the amount of his claim against Loring, out of money arising from sales of the property.

The facts reported bring the transaction fully within the fif teenth section of the Statute of Frauds, and a new trial was properly refused.

Judgment affirmed.

BRENNAN et al. v. MARSH et al.

Cahoon et al. v. Levy et al., (6 Cal. R., 295,) affirmed.

APPEAL from the District Court of the Seventh Judicial District, County of Contra Costa.

Gunnison, Parker, and Cowles, for Appellant.

John Currey for Respondent.

TERRY, C. J., delivered the opinion of the Court-FIELD, J., and BALDWIN, J., concurring.

The facts disclosed by the record bring this case fully within the rule laid down by this Court in the case of Cahoon and Kent v. Levy, (6 Cal., 295,) and, on the authority of that decision, the judgment is affirmed.

TYLER v. DECKER et als.

D. purchased a lot of land at sheriff's sale on execution, and entered into possession and erected certain buildings thereon. On the 25th day of May, 1858, D. removed the buildings. On the same day the buildings were removed, the defendants in execution sold the premises to T., and a day or two after, T. redeemed the lot from the sale, and then brought suit against D. to recover the value of the buildings: Held, that as there was no evidence that the buildings were attached to the soil, T. can not

recover.

APPEAL from the District Court of the Ninth Judicial District, County of Siskiyou.

Heydenfeldt for Appellant.

H. P. Irving for Respondents.

Pease v. Barbiers.

TERRY, C. J., delivered the opinion of the Court-BALDWIN, J., concurring.

Defendants, in December, 1857, purchased a lot at sheriff's sale. Soon after, they entered into possession and erected certain buildings, which remained on the lot until the 25th of May, 1858, when they were removed by defendants.

On the 25th of May, 1858, the defendants in execution sold the premises to plaintiff, and a day or two afterwards, tendered to defendants in this action the money necessary to redeem the lot, which was accepted by them.

This suit was instituted to recover the value of the buildings removed by defendants, previous to the redemption. The Court below entered a judgment of nonsuit, from which plaintiff appeals.

There was no error in the judgment. It now here appears in the record that the buildings in question were ever annexed to the soil. They appear to have been mere temporary structures placed upon the lot by the party in possession, and removed by him before his possession terminated. Judgment affirmed.

PEASE v. BARBIERS AND WIFE.

The certificate of the acknowledgment of a married woman to a deed, must state that the contents of the deed were explained to her, otherwise it is defective, and will not pass her interest in the estate.

Under our law, no presumption of knowledge, on the part of a married woman, of the contents of a deed, arises from the fact of executing it.

APPEAL from the District Court of the Seventh Judicial District, County of Solano.

The facts appear in the opinion of the Court. The Court below decreed a foreclosure of the mortgaged premises, and defendants appealed.

John Currey for Appellants.

The appellants assign the following errors as causes requiring the reversal of the decree:

1. The mortgages produced in evidence were void, and therefore the decision of the Court, decreeing a sale of the premises described in the complaint, was unauthorized.

The homestead is the joint estate of husband and wife. They hold as joint-tenants, with the right of survivorship. Taylor v. Hargous, 4 Cal., 268; Poole v. Gerrard, 6 Cal., 72, 73; Moss v.

Pease v. Barbiers.

Warner and Wife, 10 Cal., 296; Dunn v. Tozer, 10 Cal. R., 167; Revalk v. Kraemer, 8 Ca.l, 66.

This joint estate is like that which arose by a conveyance of lands to husband and wife jointly at common law, of which both were seized of the entirety, and which neither could aliene without the other. 2 Kent's Com., 132; 1 Preston on Estates, 131; Homestead Act, § 10.

The Act concerning Conveyances (Wood's Digest, p. 100, § 1) provides the mode for the conveyance of real estate.

The term "conveyance" defined. Wood's Dig., p. 104, § 36. How a married woman shall convey. Wood's Dig., p. 102, §§ 19, 23. She must be made acquainted with the contents of such conveyance. Ib., §§ 22, 23. The certificate must, upon its face, show such fact. Ib., § 23.

In what cases is it necessary that the wife shall join in the conveyance of real estate?

In two cases only: First, where the estate to be conveyed is the homestead. Wood's Dig., p. 483, § 2. Second, where the estate to be conveyed is her separate estate. Wood's Dig., p. 488, § 6.

The form of acknowledgment is the same in both these cases; and these acts are construed in pari materia with the general Act concerning Conveyances. Selover v. Am. Rus. Com. Co., 7 Cal., 266.

The estate does not pass until the statutory conditions are performed. The officer taking the acknowledgment must so ascertain the fact that the wife was made acquainted with contents of the conveyance, as to be able so to certify-and he must so certify. The statutory conditions are conditions precedent to the passing of the estate. 7 Cal. R., 266; Wood's Dig., p. 102, § 23; Bennett v. Tewksbury, 9 Cal., 13; see, also, Edward v. Klock, 13 Barb., 54, 55; Stanton v. Button, 2 Comstock, 527; Pendleton v. Button, 3 Comstock, 406.

Whitman and Wells for Respondents.

The question presented to the Court in this case, is the sufficiency of the acknowledgments of Isabel Maria Barbiers to the mortgages set forth in the complaint, and on which the decree in this cause was based, and whether her homestead rights in the premises are barred by those mortgages.

The question of homestead is not raised in the pleadings, nor do the proofs identify any specific portion of the premises as invested with that character.

The certificates of acknowledgment attached to the mortgages fail to declare that Isabel Maria was made acquainted with the contents of the instrument, but in all other respects are as full as the statute form of an acknowledgment by a married woman to a conveyance of her separate property.

Pease v. Barbiers.

It is submitted, on the part of the plaintiff below-respondents herein in support of the decree of the Court below-that the interest of the wife in the homestead property, is not such an estate as is the subject of a conveyance by her, and that, therefore, the provisions of an Act concerning Conveyances, Wood's Digest, 100, do not apply.

That if the provisions of said act are applicable to the case at bar, then the acknowledgment is not conclusive, but may be amended, and does not vary the rights of the parties.

In support of the first point, we cite Taylor v. Hargous, 4 Cal., 268; Poole v. Gerrard, 6 Cal., 71; Wood's Digest, 100, §§ 19, 20, 21; Ib., 486, § 6; Revalk et al. v. Kraemer et al., 8 Cal., 66.

The interest of the wife in the homestead property, is of the same nature as that in the common property, with the statutory disability limiting the power of the husband to control and dispose of it as his own, and directing its descent in case of the death of either party. Revalk et al. v. Kraemer et al., 8 Cal., 66.

In Taylor v. Hargous, 4 Cal., 268, the Court say, "that the estate becoming homestead, it is turned into a sort of joint tenancy, with the right of survivorship, at least, as between husband and wife, and the estate can not be altered or destroyed except by the concurrence of both, in the manner provided by law."

And citing this language in Poole v. Gerrard, 6 Cal., 71: "In Taylor v. Hargous, we declared that the homestead was a joint estate in husband and wife, with the right of survivorship. It results from that decision, that it is neither common property which would enable the husband to sue alone, nor is it the separate estate of the wife, in which case only she would be enabled to sue alone." This language, it is conceived, must be decisive of the case at bar.

The Act concerning Conveyances provides that a husband and wife may, by joint deed, convey her real estate in like manner as if she was unmarried. And §§ 19, 20, and 21, Wood's Digest, 100, provides how the estate of a married woman, "her real estate," may be conveyed. These provisions seem to be referable to the second section of the Act of April 7, 1850, defining the rights of Husband and Wife. Wood's Digest, 488.

The separate property of a married woman can not become the subject of the Homestead Law. The language of this Court, in Revalk et al. v. Kraemer et al., seems to qualify Taylor v. Hargous to that extent.

The homestead may attach to the separate property of the husband, or to the common property. If the separate property of the husband, its character is only changed so far as the provisions of the Homestead Law change it.

If the common property becomes homestead, it remains common property, with this qualification, that it is charged with a

Pease v. Barbiers.

homestead character, and subject to all the disabilities and restrictions which the statute has attached thereto, and to none other, for it is withdrawn from liability for debts, etc.

The fact that the homestead character attaches, does not confer a separate estate on the wife and thereby divest the estate of the husband, nor does it deprive him of the control and powers of disposition given him by law over the entire common property, other than in the single instance of restraint over the power of alienation, requiring the sale "by the owner to be affirmed by the consent of the wife."

The interest of the wife can hardly be termed an estate, for it does not come within the strict definition of an estate, as given by the elementary writers. Besides, the language of the Homestead Act, before cited, speaks of the homestead to be selected by the owner, (section one,) and of the alienation by the owner requiring the signature of the wife, etc., to make it valid.

So, too, a change of residence and other circumstances, presumptively out of the wife's power-at any rate, inconsistent with the legal idea of an estate or property-may change the homestead, divest her power to control, from one piece of property to another, or put her to an election as between them.

If, then, the homestead is created out of the common property, or the separate property of the husband, it is submitted that its character is unchanged, save so far as affected by the Homestead Act, and that impresses only this restraint upon its alienation.

"No mortgage, sale, or alienation of any kind whatever, of such land by the owner thereof, if a married man, shall be valid without the signature of the wife to the same, acknowled by her separately and apart from her husband." Wood's Digest, 483, § 2.

The mortgages in this case have the signature of the wife, and are acknowledged by her separately and apart from her husband. No estate is conveyed by her, but her assent to the alienation is obtained in the manner prescribed by law.

In Sargent v. Wilson, 5 Cal., 506, this Court held that any excess over the homestead value-five thousand dollars-was common or separate property, subject to the control of the husband, and may be disposed of in any manner by him.

It is believed that the cases cited above, fully support the view taken by the Court below, and that the reasoning of this Court, in Revalk et al. v. Kraemer et al., 8 Cal., 66, constitutes, in connection with Taylor v. Hargous, and Poole v. Gerrard et al., the strongest argument that can be advanced in support of the decree.

It might admit of question, whether the defect in the acknowledgment, if essential, could not be cured, as ordinary defects in in acknowledments can not be taken advantage of by the parties, but the statute requiring an acknowledgment declaring the

« PreviousContinue »