McQuade v. Whaley

Citations

• 31 Cal. 526

Syllabus

<p>Homestead.—The doctrine laid down in Gee v. Moore, 14 Cal. 477; and Brennan v. Wallace, 25 Cal. 114; that the husband and wife were not joint tenants in the homestead, but that the surviving wife took the homestead not by right of survivorship, but as property set apart by law from the husband's estate for her benefit, applied only to the Homestead Law as it existed prior to the amendment of 1860.</p> <p>Idem.—The Homestead Law passed in 1860 must be considered in pari materia with the provisions of the Act of 1851.</p> <p>Joint Tenancy in Homestead.—Even if the Homestead Act of 1860 makes the husband and wife joint tenants in homesteads acquired under the Act of 1851, such joint tenancy does not become perfected until a declaration of homestead is filed, as required by the Acts of 1860 and 1861=</p> <p>Idem.—If a homestead was acquired under the Act of 1851, and no declaration of homestead was made and recorded, as required by the Acts of 1860 and 1861, before the time for filing such declaration had expired, the title to the homestead rested where it was before the premises were appropriated as a homestead.</p> <p>Conveyance of Homestead.—A conveyance made by the husband alone of a homestead acquired under the Act of 1851 was valid, subject to the right of the husband and wife to hold the property as a homestead until it ceased, to be such, and a failure to make and record a declaration of homestead under the Acts of 1860 and 1861, was an abandonment of the homestead, and the grantee then became entitled to its actual possession and enjoyment.</p> <p>Idem.—If husband and wife acquired a homestead under the Act of 1851, and the husband alone made a conveyance of the property and then died before the time expired for making and recording a declaration, as required by the Acts of 1860 and 1861, and no such declaration was made and recorded, upon the expiration of the time for making the same the grantee became entitled to the actual possession and enjoyment of the