Peterson v. Hornblower

Citations

• 33 Cal. 266

Syllabus

<p>Mortgage and Sale of Homestead under the Act of 1851.—The Homestead Act of 1851, providing that “ the homestead % * * shall not be subject to forced sale on execution, or any other final process from a Court,” etc., and that “ such exemption shall not extend to any mechanic’s, laborer’s, or vendor’s lien, or to any mortgage lawfully obtained,” did not limit said exemption to mortgages for the purchase money, but comprehended all that the parties might, in the mode pointed out in the Act, execute for any purpose.</p> <p>Mortgage of Homestead under the Act of 1860. — Under the amendatory Homestead Act of 1860, a homestead could only be acquired or abandoned by the written declaration of the parties, and no mortgage thereof, to secure a loan or indebtedness, was valid, except to secure the purchase money, and then, if the mortgagor were married and the wife resided in this State, not unless the mortgage was executed and acknowledged by her.</p> <p>Idem.—In the clause of section two of the Act of 1862, which provides that “ no alienation, sale, conveyance, mortgage, or other lien of or upon the homestead property, shall be valid or effectual for any purpose whatever, unless the same shall be executed by the owner thereof, and be executed and acknowledged by the wife,” etc., the words “ mortgage or other lien,” are descriptive of all other mortgages and liens than those enumerated in said first clause, and conserved and confirmed the right of voluntarily alienating or incumbering the homestead by a compliance with the requirements contained in the Act, as to the mode of its accomplishment.</p> <p>Mortgage of Homestead. — The husband and wife are not restrained by the Homestead Act of 1862 from mortgaging or otherwise charging the homestead to secure the payment of a loan ; nor is a sale of the same, in pursuance of an express power contained in the mortgage thereof, or a judgment of foreclosure, prohibited ; nor is a voluntary alienation of the homestead by the husban