Bowman v. Norton

Citations

• 16 Cal. 213
• 1860 Cal. LEXIS 211

Syllabus

<p>Gee v. Moore (14 Cal. 472) as to the power of the husband alone to alienate the homestead subject to certain restrictions, etc., affirmed.</p> <p>Under the Act of 1851, prior to its amendment in 1860, mortgages upon the homestead, executed by the husband alone, were not absolutely void, but were invalid only to the extent required for the protection of the husband and wife in the enjoyment of their homestead rights.</p> <p>Where, under the Act of 1851, both husband and wife unite in a conveyance of the homestead, the homestead rights are relinquished, and persons to whom the husband alone had mortgaged the homestead previous to such conveyance, may enforce their mortgages against the property in the hands of the grantee.</p> <p>The Act of 1860 materially changes the provisions of the Act of 1851, and renders any mortgage hereafter of the homestead, except to secure or pay the purchase money, invalid for any purpose whatever.</p> <p>A conveyance by the husband and wife of the homestead does not transfer the homestead rights. Such rights may be released and abandoned, but are, in their nature, incapable of sale and transfer. The exemption from forced sale is the personal right of both husband and wife, and the restraint upon the husband’s power of alienation is the personal right of the wife alone, and they cannot be assigned to others.</p> <p>A decree in insolvency, discharging the husband and setting apart to him certain premises as a homestead, does not discharge or impair the lien of a mortgage thereon previously executed by the husband. The mortgagee has vested rights which could not be thus divested; nor was such the intention of our Insolvent Act.</p> <p>In this State, a judgment cannot become a lien upon the homestead. It can become a lien only upon the real property of the judgment debtor.</p>