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The homestead right is not affected by the foreclosure of a mortgage signed by the husband alone.' The homestead being held in a sort of joint tenancy, passes, on the death of the husband, to the wife, by right of survivorship.” No damage can result from a sale of property exempt from forced sale as a homestead. If the property sold was a homestead, the sheriff's deed conveyed nothing. The purchaser at such sale could acquire no right to the property, nor could the plaintiff suffer any injury.” The only way in which the right of the wife to the homestead can be extinguished, is by a joint deed executed by both husband and wife, and properly acknowledged." In an action by the wife against the husband, for a divorce, the defendant cannot have a portion of the homestead set apart to him, where it is not shown that the property claimed as a homestead has been at any time during the existence of the marriage the residence of the family.” 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." 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 five thousand dollars, 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." FORMS.

Petition for Homestead by an Insolvent.

District Court, 4th Judicial District. Frank Max, an Insolvent Debtor, aqainst his Creditors. City and County of San Francisco, ss: The petition of Frank Max, the said insolvent, respectfully

18 Cal. 347. * id. 16t. * id. 507. * id. 224. * 10 id. 17. * id. 296.

represents, that he is, and was at the time of filing his petition and schedule herein, and for a long time theretofore, has been a married man and man of family, and at and during said several times resided with his family in and upon that certain house and lot, or parcel of land, situated in the city and county of San Francisco, and bounded and described as follows, to wit: , [herein insert description,] as his homestead, and that he claims the same as his homestead. That he purchased the same on or about the first day of April, A. D. 1857, and executed a mortgage upon the same for a part of the purchase money, to wit: the sum of three thousand dollars, o said mortgage is still wholly unpaid and in full force and virtue. That said house and lot subject to the payment of said mortgage, is reasonably worth less than the sum of five thousand dollars. Petitioner also represents, that said house and lot is set forth in his schedule in said proceeding, and that there is also set forth in said schedule, a small lot of furniture, to wit: [here insert description,] valued at the sum of three hundred dollars. Also, that he is a carpenter by trade, and that his schedule contains a lot of tools, with which your petitioner carries on his said business and trade, and which are necessary thereto; all of which your petitioner is advised and verily believes he is entitled to have set apart for the use of himself and family, as property exempt by law from forced sale by execution. Wherefore, the premises considered, }. petitioner prays that the said premises be set apart as his homestead, and that said furniture and tools be also set apart for his use, and for such other relief as may be just, and so he will ever pray, &c. Subscribed and sworn to, before me, ) FRANK MAX. this 2d day of May, 1858. W. BARTLETT, Dep. County Clerk.

Order of Reference.

District Court of the Fourth Judicial District of the State of Cali

fornia, in and for the City and County of San Francisco:

April Term, Tuesday, April 5, 1858.

Present, HoN. JoHN S. HAGER, Judge,

Frank Max, an Insolvent Debtor,
against
his Creditors.

S.M.Wilson, Esq., counsel for John Smith, the opposing creditor herein, appeared in open court, and with the consent of the insolvent's counsel, withdrew the opposition of said creditor to the discharge of the insolvent. hereupon, on motion of insolvent's counsel, it is ordered, that this cause be, and it is hereby referred to S. H. Dwinelle, Esq., to take testimony and ascertain the value &c., of the homestead, tools, and other property claimed by the insolvent as exempt from execution and forced sale, and to report the same to this court.

Order Setting Apqrt Homestead to Insolvent.

In the District Court of the Fourth Judicial District.

Frank Max, an Insolvent Debtor,

against his Creditors. On motion of Messrs. McDougall and Sharp, attorneys for etitioner, and there being no opposition, thereto, and it appear

ing to the satisfaction of the court that the property set out and described in petitioner's schedule as his homestead is the homestead of petitioner, and that he and his family reside thereupon, and it also appearing to the satisfaction of the court that the said property, together with the improvements thereon, is of less than the value of five thousand dollars,

Now, therefore, in consideration of the premises, it is ordered, adjudged and decreed, that the said real estate, together with the improvements, to wit: {"; insert description] be separated and set apart unto the said Max and his family, as his and their homestead.

It is further ordered, adjudged and decreed, that the wearing apparel and tools mentioned and described in said petitioner's schedule, be set apart to the said petitioner and his family for his and their benefit and use. John S. HAGER, Judge.

Dated San Francisco, April 16th, 1859.

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THE relation of husband and wife, though having its foundation in nature, as the primary and most important of the domestic relations, is regarded by the law purely as a civil contract, and as such, in order to make it binding, it must be characterized in the main, by the same essentials requisite to the validity of other contracts. Hence the consent of parties legally competent to contract is necessary; a sufficient consideration is found in the mutuality of the contract. The chief peculiarity which distinguishes this from other contracts is, that it continues during the lives of the parties, and cannot be dissolved by mutual consent, but only for certain specific causes, defined by law. By the statutes of California, which follow the civil rather than the common law, the right is conferred upon the wife to hold separate property, to carry on business as a femme sole, to make conveyances in certain cases, and to exercise other powers, equally inconsistent with the common law theory of the nature and effect of the marriage relation, as will appear from the following summary of the statutory provisions upon the subject, together with the adjudications of the courts thereon. The act of April 22d, 1850, regulating marriages, provides substantially as follows: 1. Marriage is considered in law as a civil contract, to which the consent of the parties is essential. . 2. All marriages between persons within certain degrees of kindred are declared to be incestuous and void. 3. All marriages of white persons with negroes or mulattoes are declared to be illegal and void. 4. Whoever shall contract marriage in fact, contrary to the two foregoing prohibitions, and whoever shall solemnize any such marriage, shall be deemed guilty of a misdemeanor, punishable by fine, imprisonment, or both. 5. All marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted, shall be valid in all courts and places within this state. 6. Judges, justices of the peace, clergymen of all denominations, and licensed preachers, may perform the marriage ceremony. 7. But no judge, &c., shall marry any male under twenty or female under eighteen years without the consent of the parent or guardian, or other person under whose care and government such minor may be. The violation of this provision is a misdemeanor punishable by fine not exceeding one thousand dollars. 8. It is provided by statute, that a record of marriages shall be kept by the person solemnizing them, and certificates transmitted to the recorder of the county in which the marriage took place, with a penalty for non-compliance. 9. It is made the duty of the recorder to record all such returns of marriages in a book kept for that purpose, for which he is to be paid a fee of one dollar in each case, by the parties to the marriage. 10. The books of record of marriages are made legal evidence, also copies of the entries therein, certified by the recorder under his official seal. 11. A punishment by fine and imprisonment is provided for making a false return of a marriage, or a return of a pretended

1 Wood's Dig. p. 486.

marriage, to the recorder, or for a false record by him of any

return of a marriage. 12. By the statute of April 26, 1858, as amended March 12, 1859, it is provided, that the governor be authorized to appoint, by and with the advice and consent of the senate, a state registrar, who shall keep a record of all marriages, births, divorces, and deaths, certified to him by the recorders of the various counties of the state, and shall prepare from said record an annual report, and submit the same to the governor on the 15th December of each year. 13. By section 2 of said law (as amended), it is made the duty of all persons performing the ceremony of marriage, to file in the office of the recorder of the county in which such marriage takes

* Laws of 1859, p. 108. *

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