or incurred at any time in any other place than in this State."

a

§ 71. "Sec. 2. Such exemption shall not extend to any mechanic's, laborer's or vendor's lien, or to any mortgage lawfully obtained; but no mortgage, sale, or alienation of any kind whatever of such land by the owner thereof, if a married man, shall be valid without the signature of the wife to the same, acknowledged by her separately and apart from her husband; provided, that the wife be a resident of this State, and that such signature and acknowledgment shall not be necessary to the validity of any mortgage upon the land executed before it became the homestead of the debtor, or executed to secure the payment of the purchase-money." b

$ 72. "Sec. 10. The homestead and other property exempt from forced sale, upon the death of the head of the family, shall be set apart by the Probate Court for the benefit of the surviving wife and his own legitimate children," etc."

73. The homestead is the dwelling-place of the family where they permanently reside, but it cannot attach upon land held in common, or by joint tenancy. The premises are

a Nor to taxes. See sec. 11 of the same act.

b When a mortgage is given as security for the purchase-money of the mortgaged premises, no homestead can be carved out of the property so as to impair the rights of the mortgagee. Montgomery v. Tutt et al., 11 Cal. Rep. p. 190. Or even when made for money obtained to pay off the vendor's lien. A clear title to the homestead cannot vest until the payment of the purchase-money; and it makes no difference, in equity, whether the first debt be renewed or another debt created to raise money to pay it off. Carr v. Caldwell, 10 Cal Rep. p. 380. Where a mortgage, executed before the property became a homestead, is cancelled by means of money raised on a new mortgage in which the wife does not join, the property being then a homestead, the substance of the transaction, as regarded in equity, is an assignment of the old mortgage in consideration of the money advanced. Swift v. Kraemer, April T. 1859.

The wife has no right to the homestead independent of her husband; if surviving him, she takes the homestead as property set apart to her by law, upon the distribution of her husband's estate. Gee v. Moore, Oct. T. 1859. But whether she succeeds to the homestead in her own right, or as trustee for the legitimate children, where there are such, of the deceased, has, it seems, not yet been decided. See In re Tomkins' Estate, 12 Cal. Rep. p. 114. Cook v. McChristian, 4 Cal. Rep p. 23.

d

e

Davis v. Fleishacker, 5 Cal. Rep. p. 244; Reynolds v. Pixley, 6 lbid. p 165; Kellersberger v. Kopp, 6 Ibid. p. 563.

never impressed with the character of homestead until actual residence on them by the family. As long as the premises retain this character, they cannot be alienated, except by a joint deed, executed by both husband and wife, and properly acknowledged (see §§ 54, 55 ;) if they should undertake to execute two separate deeds for the homestead, it has been held that both would be invalid. A conveyance by the husband alone is absolutely void as to the homestead value, (but valid for any excess,) except where the signature of the wife is not required, under the proviso in sec. 2 of the homestead act (ante, § 71).

But the invalidity of a deed for the homestead, on account of its not having the wife's signature and acknowledgment, only goes to the extent essential to the object of the statute. After the termination of the homestead by absolute abandonment, whereof removal by the husband with his family is presumptive evidence, or by the death of the wife without children, the husband cannot recover possession under the act.

§ 74. The separate property of the husband may become the homestead, as well as the common property acquired after marriage. But it is very doubtful whether the separate property of the wife can become the homestead. The constitution expressly says, that all property of hers acquired in a certain manner, shall be her separate property (art. XI. § 14), and it may admit of much doubt whether the mere act of the wife, of residing with her husband on the premises, it being her duty to live with her husband, can be construed into a change of her constitutional right with respect to her separate property."

In the absence of a decision on this point since such doubts have been expressed, it would appear prudent by taking a mortgage on separate property of the wife, which is, or at any time had been, the residence of the family, to have both

* Cary v. Tice, 6 Cal. Rep. p. 625; Benedict v. Bunnell, 7 Ibid. p. 245. b Poole v Gerrard, 6 Cal. Rep. p. 71.

• Sargent v. Wilson, 5 Cal. Rep. p. 504; Revalk v. Kraemer, 8 Ibid. p. 66. Guiod v. Gourdon et al., January T. 1860.

• Harper et al. v. Forbes et al., January T. 1860.

Gee v. Moore, October T. 1859.

Revalk v. Kraemer, 8 Cal. Rep. p. 66.

rights waived by the husband and wife, and to have the execution of the instrument by the wife, acknowledged in such a manner as to comply with the requirements of the law in each case.a

SEPARATE PROPERTY.

§ 75. The act of April 17, 1850, defining the rights of husband and wife, contains the following provisions :

"Sec. 1. All property, both real and personal, of the wife, owned by her before marriage, and that acquired afterwards by gift, bequest, devise, or descent, shall be her separate property; and all property, both real and personal, owned by the husband before marriage, and that acquired by him afterwards, by gift, bequest, devise, or descent, shall be his separate property."

"Sec. 2. All property acquired after the marriage by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property."

But the marriage contract, which shall be acknowledged and recorded to impart notice of its contents, may contain different stipulations.

§ 76. The separate property as above defined has been set apart for the wife by art. XI, § 14 of the Constitution of California, and in pursuance of that clause the act also directs. that an inventory of such separate property shall be made out and signed by the wife, acknowledged or proved in the manner required for a conveyance of land, and recorded in the county where the parties reside, and in such other counties in which real estate, included in the inventory, may be situated. All property belonging to her, and included in the inventory, is exempt from execution for the debts of her husband.c

a The form of acknowledgment, both for a conveyance of the homestead and for one of the wife's separate property, is that required under the conveyancing act for all conveyances by married women. See j 54-57. Pease v. Barbiers, 10 Cal. Rep. p. 436. That for the homestead must be taken before the officers named in sec. 4 of said act, quoted in ◊ 53; but for that of separate property, the officers are expressly named by other acts, see Új 57, 58.

b Wood's Digest, art. 2605, et seq.

The capacity of the wife being created by the constitution, her title to

By sec. 6, as amended in 1858, it has been provided that no sale or other alienation of any part of the separate property of the wife can be made, nor any lien or encumbrance created thereon, unless by an instrument in writing, signed by the husband and wife.a

§ 77. It has been further provided by act of Feb. 14, 1855:" "Sec. 1. That a married woman of legal age shall have power to convey and transfer lands or any estate or interest therein, vested in or held by her in her own right, as fully and perfectly as she might or could do if single or unmarried; provided, the husband of such married woman be not, and for one year next preceding the execution of the instrument of conveyance by the wife, has not been bona fide residing in this State."

Peculiar instructions are given for the acknowledgment of the wife's signature in each of these cases; see §§ 57, 58.

$78. All property of every kind and nature within the State of California, except churches, colleges, hospitals, etc., is taxed annually in proportion to its value, for the support of the State government, the county, and the city or town. The revenue laws provide how property shall be assessed at its full cash value. The general revenue law was passed April 29, 1857, but by a supplementary act of April 29, 1859, the manner of assessing and collecting the taxes, was

her separate estate depends alone upon the mode of its acquisition, and vests in her before the inventory can be filed. Selover v. Amer. Russ. Com. Comp., 7 Cal. Rep. p. 266. And the omission to record will not alter its mode of disposition, or subject it to the control of the husband, in any other manner than as the separate property of the wife.

It may be doubted whether that portion of this section, which requires the signature of the husband to make a valid sale, or to create an incumbrance upon the separate property of the wife, can be sustained. No power is given her by law over the will of her husband, and to make his consent necessary to the sale and use of that which is exclusively hers, would seem inconsistent with the capacity conferred upon her by the constitution itself. The constitutionality of some other restrictions, by the same act, on her rights in her separate estate, seems equally doubtful. Selover v. Amer. Russ. Com. Comp., 7 Cal. Rep. p. 266.

b Wood's Digest, art. 2630.

Ibid. art. 3003, et seq.

to a certain extent changed, as affecting the city and county of San Francisco. The latter act provides (sec. 9) that every tax shall, from and after the third Monday in October of each year, be a lien on all the real estate of the person delinquent, and on all real estate subsequently acquired by such person, until the tax is paid, or the title to the real estate has vested in a purchaser under a sale for taxes. But by the general law, which affects in this respect the entire State, except the city and county of San Francisco, every tax (sec. 32) is made a judgment against the person and a lien against the property assessed, dating from the first Monday in March in each year.

79. The Board of Supervisors in each county sit during some time as a Board of Equalization, to determine all complaints made in regard to the assessed value of any property, and may correct any valuation, either by adding thereto or deducting therefrom, but the Board has not the right to raise the valuation without notice to the owner. The tax collector is then authorized to demand and collect the taxes due, and property on which the taxes remain unpaid at the expiration of the time fixed by law, is advertised for sale during three weeks. At the time and place advertised, the tax collector proceeds to sell such property, or any part thereof, to the party who will take the least portion of it and pay the delinquent taxes.

880. During six months after the sale the property is subject to redemption on payment to the purchaser of the amount of the purchase-money and fifty per cent. thereon in addition. If no redemption is made within that time, the tax collector will execute to the purchaser a deed conveying the title to the property sold. Under the general law, (sec. 23) the deed conveys the entire title, legal, equitable or otherwise, of the delinquent, but under the supplementary act (sec. 8) the absolute title is conveyed, free and clear of all encumbrances, mortgages, liens, claims, etc. of any person or corporation, except as regards the right and title of the United States, the State of California, or of minor children, who may redeem within one year after coming of age. Under