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is not only inseparably connected with survivorship-the most important characteristic of joint-tenancy-but it is also given a name, and is by statute expressly denominated a jointtenancy. As a conveyance or incumbrance cannot be made to affect the homestead without the assent of both husband and wife, manifested in form and manner as provided in the act, and as neither can prejudice the estate of the other, nor change the form of the tenancy, nor, during the continuance of the marital relations, turn the cotenancy into an estate in severalty by a quit for partition, it appears to us that these legislators have not given the most appropriate name to the tenancy created; and that, instead of a joint-tenancy, it should be termed a tenancy by entirety.
250. In considering the Nature of the Homestead Estate, Chief Justice Sawyer, of California, said: "There is no occasion to discuss at large the question whether the estate of the husband and wife is exactly the same in all respects, and with all the incidents of a joint-tenancy, in the technical sense of the term, as used in the common law, or, whether the term 'joint-tenancy' is the best that could be chosen to express the intention of the legislators. But we do not see why the character of the right, as defined, does not substantially approach very near a joint-tenancy, although not created in precisely the same way, even if not a technical joint-tenancy at common law. In the homestead estate, most of the unities of a joint-tenancy are found, for it is created by the same instrument and at the same time. So far as the homestead right is concerned, they have one and the same interest, accruing by one and the same conveyance, (or act,) commencing at one and the same time, and held by one and the same undivided possession.' If the husband controls the property during coverture, it is not because he has a greater, more valuable, or different interest in the homestead from that of the wife, but because the law has made him the head of the household and devolved upon him the duty of management, not for his own interest merely but for the joint benefit of both. And since the amendment of 1862, the right of survivorship, the grand incident of joint-tenancy, is added. The main substantial difference now, seems to be the want of
power in one of the parties to sever the tenancy, or convey at all, without the concurrence of the other in the mode prescribed. But however this may be, there is a joint interest in the homestead-a joint holding, if not a technical jointtenancy. The Legislature did not adopt the provision, that the husband and wife shall be deemed to hold the homestead as 'joint-tenants,' without some object, and the term 'jointtenants' was used as best adapted to express that object. They did not intend to use a meaningless phrase, to be attended by no consequences.
251. Homestead not ordinarily a Cotenancy. In a vast majority of the States in which homestead property is recognized and protected from forced sale, no joint-tenancy is, in express terms, created. Still a kind of joint interest is generally brought into being; alienation is usually restricted to some form of conveyance manifesting the joint assent of the spouses; and upon the death of either spouse, the estate remains exempt from execution, and generally vests in the survivor alone, or in the survivor and the children, if any, of the deceased. Practically, the interest of the wife in the premises dedicated as a homestead, under such laws, is as great as that of the husband. Her power of disposition, during the continuance of the homestead, is coëxtensive with his. But while her interest in, and disposing power over, the property is thus in fact at least equal to his, the authorities generally concede that she has no estate in the homestead, in addition to what she may have independent of the fact of homestead. In other words, the title continues in the husband, subject to certain restraints and privileges, and liable to a certain disposition after his death.
252. The interest or title of the wife in the homestead, even where, under the law, no cotenancy was created, has, however, been in some instances treated as a title in and to the lands included in the homestead. This was the case under the decisions made at an early day in California,2 declaring that the operation of the homestead law was to "create
1 Barber v. Babel, 36 Cal. 16; McQuade v. Whaley, 31 Cal. 531,
Taylor v. Hargous, 4 Cal. 273; Poole v. Gerrard, 6 Cal. 71; Buchanan's Estate, 8 Cal. 509; Revalk v. Kraemer, 8 Cal. 73; Tompkins' Estate, 12 Čal. 125.
a sort of joint-tenancy." These decisions, it must be remembered, were made before the adoption of the amendment by which homesteads were converted into joint- tenancies. They were subsequently overruled, Field, then Chief Justice, delivering the opinion of the Court, in the course of which he said, after referring to the doctrine of the earlier cases: "This doctrine has never met with the approbation of the profession, and is not warranted by any language in the constitution or the statute. There is nothing in the nature of the homestead right or privilege which justifies its designation as such an estate. The right or privilege has no single feature resembling a joint-tenancy. The estate rests where it existed before the premises were appropriated as a homestead. The appropriation of them confers a right upon the wife to insist that their character as a homestead shall continue until she consents to the alienation, or another homestead is provided, or they are otherwise abandoned. The wife, if surviving her husband, takes the homestead, not by virtue of any right of survivorship arising from the alleged joint-tenancy, but as property set apart by law from her husband's estate, for her benefit and that of her children, if any. In the same way, other property exempt from forced sale is set apart to her." The view of the law thus taken by Judge Field is consistent with decisions in other States. Thus, in Illinois the Supreme Court has held that the homestead act has not created any new estate, separate and distinct from the fee or other estate. And that, as a consequence, the conveyance of the husband operates upon and transfers the fee, subject to the homestead rights of the wife; and that as soon as the homestead rights terminate, the grantee of the husband is entitled to possession of the property as owner thereof.2
1 Gee v. Moore, 14 Cal. 472; Bowman v. Norton, 16 Cal. 217; Brennan v. Wallace, 25 Cal. 114.
McDonald v. Crandall, 43 Ill. 236; Hewett v. Templeton, 48 Ill. 369; Stewart v. Mackey, 16 Tex. 57; Davis v. Andrews, 30 Vt. 681; Gunnison v. Twitchell, 38 N. H. 62; Folsom v. Carli, 5 Minn. 337. But in Kerley v. Kerley, 13 Allen, 287, it is said that "the right of homestead is a new species of estate, created by statute, and not known to the common law. But it seems to have all the incidents of a freehold estate, and to come within the definition given by elementary writers. It is an estate indeterminate in its duration, and which may continue for the joint lives of the possessor and his wife. That it is defeasible, does not change the quantity of the estate while it continues." See also Silloway v. Brown, 12 Allen, 30.
2 53. In Iowa, the inclination seems to be to regard the homestead as in the nature of a joint-tenancy. A statute of that State authorizes the real property of a married woman to be redeemed from tax sale at any time within one year after the removal of the disability of coverture. Under this statute, a wife claimed the right to redeem the homestead; and was resisted on the ground that the homestead was not her real property. But the Court allowed her claim, upon the following grounds: "The right of the wife to the homestead of the husband, and her interest in it, are present, fixed, and substantial: they are not merely possible, remote, or contingent. Her rights and interests are in possession and enjoyment, and not merely in expectancy or dependent. The husband and wife are, as to the homestead, practically, jointtenants, subject to certain limitations for the benefit of children, etc. The husband cannot alienate the homestead, nor even his own interest in it, except the wife concur in signing the conveyance. Can it be said that she has no 'interest in' that, the present possession of which she enjoys, the title to which cannot be imparted without her consent, and the alienation of which can only be done by her joining in the conveyance?"
254. Whether Homestead Rights can attach to an undivided interest in lands, in the absence of an express provision of the statute to that effect, is a question on which the Judges have not agreed. On the one hand, it has been thought that the provisions of the homestead law contemplated that the interest to which they should be applied should be susceptible of an enjoyment in severalty. When the value of the land claimed exceeds in amount the limit of the homestead right, the statute provides means by which the homestead may be segregated; and that, as segregated, it may be set off to the judgment debtor. No such segregation could take place when the interest of the claimant was in a moiety only, for, in that case, there is no place which he can lawfully take into his exclusive possession. For these reasons, the claim of a cotenant to a homestead has been denied in many
Adams v. Beale, 19 Iowa, 67; Chase v. Abbott, 20 Iowa, 151,
of the cases in which it has been questioned.' In California, the doctrine that a homestead could not be acquired in undivided property was frequently enforced, and was applied in some extreme cases. In one instance, the lands attempted to be dedicated as a homestead belonged to the husband and wife and their child as tenants in common. The Court could see no distinction between this case and one in which the cotenants were entire strangers to each other.2 In another instance, the homestead had been acquired under a conveyance purporting to convey the same in severalty, and was acquired and held under the claim and belief, on the part of the occupant, that he was the sole owner. The Court could not understand that these facts authorized any exception to the general rule. And where, when acquired, the homestead was held in severalty, the conveyance of an undivided interest, because it turned the homestead into a cotenancy, was deemed an abandonment of the homestead. On the other hand, in several of the States, a homestead claim upon an undivided interest has been sustained, and all distinction, in this respect, between estates in severalty and estates in cotenancy denied. In California, the State in which the claim of a cotenant to exemption was first denied, the Legislature so changed the statute that a part owner could hold as a homestead lands of which he was in the exclusive possession." But we see no sufficient reason, even in the absence of statutes directly bearing upon the subject, for holding that a general homestead act does not apply to lands held in cotenancy. The fact that a homestead claim might savor of such an assumption of an exclusive right as is inconsistent with the rights of the other cotenant, and that the maintenance of such claim might interfere with proceedings for partition,
West r. Ward, 26 Wis. 580; Wolf v. Fleischacker, 5 Cal. 244; Elias v. Verdugo, 27 Cal. 418; Reynolds v. Pixley, 6 Cal. 167; Kellersberger v. Copp, 6 Cal. 565; Bishop v. Hubbard, 23 Cal. 517; Ward v. Hahn, 16 Minn. 161; Thurston v. Maddocks, 6 Allen, 429; Kingsley r. Kingsley, 39 Cal. 665.
* Giblin v. Jordan, 6 Cal. 417.
* Seaton v. Son, 32 Cal. 483.
* Kellersberger v. Kopp, 6 Cal. 565.
5 Horn v. Tufts, 39 N. H. 483; Thorn v. Thorn, 14 Iowa, 53; McClary v. Bixly, 36 Vt. 254; Greenwood v. Maddox, 27 Ark. 660; Robinson v. McDonald, 11 Tex. 385. • St. of 1868, 116.