Moss v. Warner

Citations

• 10 Cal. 296

Syllabus

<p>The wife is a proper party defendant in a suit to foreclose a mortgage executed upon premises claimed as a homestead. If not made such a party, she may intervene, or, by permission of the Court, be allowed to file a separate answer, the plaintiff having the liberty to amend his complaint if any matters are set up in the answer which he might wish to anticipate by further allegations.</p> <p>The residence of the husband, with his family, upon the premises, impresses upon them the character of homestead.</p> <p>The Homestead Act operates upon property acquired previous to its passage, as well as upon that subsequently acquired.</p> <p>The voluntary removal of the husband, with his family, is not, of itself, evidence of abandonment of the place as a homestead; much less so a removal under apprehensions for the safety of his family.</p> <p>Where a mortgage upon a homestead is executed by the husband, without the wife joining in the execution, it has no validity as a lien upon the premises to the exemption of $5000.</p> <p>Where commissioners were appointed by the Court to select and set apart as the homestead a portion of the tract of land mortgaged, such portion to be of the value of $5000, in form as compact as possible, including the place where the dwelling-house is situated, and to report their action to the Court—and the commissioners, acting under oath, made the selection, and their report was approved: Held, that the proceeding was proper.</p>