Benson v. Aitken

Citations

• 17 Cal. 163

Syllabus

<p>A, with his wife and five children, occupy premises as a homestead. The wife dies; four children are sent away to a boarding-school, and the premises leased by A to a tenant, who takes possession—one consideration of the lease being, that the tenant should board and take care of an infant child of A. During this lease, and while the tenant is in possession, A mortgages the premises— having, since executing the lease but before the mortgage, married his second wife. After the mortgage, A and wife go into possession of the premises: Held, that the mortgage binds the premises; that A, after the death of his first wife, had the right to dispose of the premises at his sole pleasure, or at his sole will to abandon them as a homestead; that by the lease he did apparently so abandon them, at least for the term of the lease; that having mortgaged the premises to an innocent party before unequivocally manifesting any purpose of resuming their occupancy, and before the second wife had any rights therein, neither she nor he can complain.</p> <p>The fact that one child boarded with the tenant, or that A lived in the house or had furniture there, would make no difference in the result.</p> <p>Occupancy of premises by husband and wife only affords an inference of dedication as a homestead, or presumption that the property is a homestead; but when this occupancy ceases by the act of the husband under such circumstances— as death of the wife—that his sole act is effectual to change the homestead nature of the property; no presumption or inference arises that he means to resume their occupancy as the homestead of his family.</p>