Cohen v. Davis

Citations

• 20 Cal. 187

Syllabus

<p>The provisions of the amendatory Homestead Act, passed April 28th, 1860, are not applicable to homesteads acquired previous to its passage, until the filing by the claimants of the declaration therein provided for.</p> <p>The proper construction of the Act of 1860 is, that parties having homesteads under the Act of 1851 shall have the right to take the benefits of the provisions of the new act, and to claim their protection, upon complying with its requirements. They are not compelled to accept its benefits or submit to its restrictions, and their rights, as they existed under the old act, are secured until they make an election to accept the provisions of the new act by filing the declaration, or to abandon the homestead, for which purpose they are allowed a specified period.</p> <p>Where, subsequent to the passage of the Act of I860, a husband and wife, not having filed any declaration under that act, executed a mortgage upon their homestead premises, acquired previous to its passage : Held, that the mortgage was a valid lien upon the premises as against the homestead claim.</p>