Security Loan & Trust Co. v. Kauffman

Citations

• 108 Cal. 214
• 41 P. 467
• 1895 Cal. LEXIS 845

Syllabus

<p>Homestead—Modes and Incidents Statutory.—The mode in which a homestead is to be created, as well as the legal incidents which attach to its existence, are purely statutory.</p> <p>Id.—Declaration by Head of Family—Eights of Wife not Named.— A declaration of homestead by one who declares that he is the head of the family, and that his family consists of himself and four minor children, and following the statute in other respects, is sufficient to impress the land with the incidents of a homestead, including exemption from forced sale, and if the husband is in fact a married man, and the property upon which the homestead is declared is community property, the husband cannot make a valid mortgage upon the homestead which is. not executed by both husband and wife.</p> <p>Id.—Contents of Declaration—Membership of Family.—A statement, by the declarant of a homestead that he is the head of the family is a statement of the ultimate fact required by the statute, and he is not. required to state in the declaration whether he is married or who are-the members of his family, and the statement or omission of those facts, does not impair the sufficiency of the declaration, or prevent its inurement to the benefit of his wife.</p> <p>Id.—Insanity op Wipe.—The fact that the wife is insane cannot deprive her of the benefits of the homestead, or give to the husband any greater interest in the estate, or authorize him to encumber it, except in the mode provided by statute.</p> <p>Id.—Effect of Declaration—Notice of Rights.—The filing of a declaration of homestead for record is a notice to all who may thereafter deal with the property that, if the declarant is a married person, the homestead cannot be conveyed or encumbered unless the instrument is executed or acknowledged by both husband and wife, and the record of the declaration is a sufficient notice to all persons to put them upon inquiry as to the rights of the wife, and, if they fail to make such inquiry, the loss should fall