Gee v. Moore

Citations

• 14 Cal. 472

Syllabus

<p>A covenant of non-claim in a deed amounts to the ordinary covenant of warranty, and operates, equally, as an estoppel.</p> <p>But this covenant is confined to the estate granted, and where that is “ the right, title, and interest,” of the grantor, instead of the land itself, the covenant does not estop him from setting up an after-acquired interest.</p> <p>The Constitution contemplates legislation to exempt the homestead from forced sale, tint not to restrain voluntary alienation. The statute goes beyond the Constitution.</p> <p>The husband alone has the legal title to the homestead, and his absolute power of alienation is restricted only so far as is necessary to protect the homestead.</p> <p>The Constitution and statute are based upon the idea that the homestead is to be carved out of the property of the husband, or at least out of common property.</p> <p>A sale of the homestead by the husband alone, vests the estate in the vendee, subject only to the use and occupation by husband and wife until another homestead is acquired, or until the character of the premises as a homestead is otherwise gone.</p> <p>In such case, upon the death of the wife, without issue living, the premises cease to be a homestead, and the vendee of the husband is entitled to possession.</p> <p>The death of the wife, after suit brought by herself and husband for the homestead, defeats a recovery by the husband, though the right to recover existed at the commencement of the suit.</p> <p>Taylor v. Kargous, 4 Cal. 373; Pooh v. Gerard, 6 Id. 71; SevcdJc Y. Kramer, 8 Id. 73 —overruled.</p> <p>The appropriation of premises, as a homestead, gives the wife a right to insist that their character as a homestead shall continue until she consents to their alienation, or another homestead is provided, or they are otherwise abandoned.</p> <p>The wife, if surviving her husband, takes the homestead as property set apart by law from her husband’s estate, for her benefit, and that of her children, if there