form no very satisfactory reason for denying the exemption. If the rights of the other cotenant are threatened or dangered, he alone should be permitted to call for protection and redress. The law will not sanction any use of the homestead in prejudice of his rights. But as long as his interests are respected, or so nearly respected that he feels no inclination to complain, why should some person having no interest in the cotenancy be allowed to avail himself of the law of cotenancy for his own, and not for a cotenant's gain? The homestead laws have an object perfectly well understood, and in the promotion of which Courts may well employ the most liberal and humane rules of interpretation. This object is to assure to the unfortunate debtor, and his equally unfortunate but more helpless family, the shelter and the influence of HOME. A cotenant may lawfully occupy every parcel of the lands of the cotenancy. He may employ them not merely for cultivation or for other means of making profits, but may also build houses and barns, plant shrubs and flowers, and surround himself with all the comforts of home. His wife and children may, of right, occupy and enjoy the premises with him. Upon the land of which he is but a part owner, he may, and in fact he frequently does, obtain all the advantages of a home. These advantages are none the less worthy of being secured to him and his family in adversity, because the other cotenants are entitled to equal advantages in the same home. That he has not the whole, is a very unsatisfactory and a very inhumane reason for depriving him of that which he has.

255. Holds whatever Title Claimant has.—The legislators who enact homestead laws are, no doubt, chiefly intent upon protecting the debtor and his family, regardless of the title by which the homestead is held. Such as it is, the family is entitled to retain it. Whether it be an estate in feesimple, free from incumbrances, or an estate of less dignity and value, or a mere possessory interest,' as long as the debtor can occupy it as a home, the creditor should not be allowed to take it under his execution. The object of the

Brooks v. Hyde, 37 Cal. 373.

homestead law is to protect the possession. It applies as well to possession held under an equitable as under a legal title.' "Whether the debtor held in fee-simple absolute, for life or for a term of years, the reason for applying the exemption exists with equal force." The possession of land held under a contract to purchase may be subjected to a homestead claim. If so claimed, the husband cannot dispose of it without the assent of the wife, and if he refuse to complete his purchase, she should be permitted to do so for the protection of her interest.a

256. Title acquired after filing a declaration of homestead is also protected from forced sale, and seems to become an inseparable part of the homestead estate. In California, a declaration of homestead was filed by one in possession, the fee being then in a stranger. Afterwards, prior to the sale under execution, but subsequently to the docketing of a judgment against him, the claimant became the owner of the fee. The purchaser at the sheriff's sale brought an action to recover possession. In determining that this action could not be sustained, the Court justified its decision by the following train of reasoning: "At the time the judgment was docketed and became a lien, the premises constituted the homestead of the defendant, as against everybody but the owner of the land. There is no question made as to its being a homestead, if a party having a naked possession only, the title being in a stranger, can acquire a homestead right in the land so possessed. The statute does not specify the kind of title a party shall have to enable him to secure a homestead. It says nothing about title. The homestead right given by the statute is impressed on the lands to the extent of the interest of the claimant in it-not on the title merely. The actual homestead, as against everybody who has not a better title, becomes impressed with the legal homestead right by taking the proceedings prescribed by statute.

Tomlin v. Hilyard, 43 Ill. 300; McCabe v. Mazzuchelli, 13 Wis. 481.

* Blue v. Blue, 38 Ill. 18; Johnson v. Richardson, 33 Miss. 463; Pelan v. De Bevard, 13 Iowa, 53; McClurkin v. McClurkin, 46 Ill. 327; Conklin v. Foster, 57 Ill. 104; Colwell v. Carper, 15 Ohio, 279.

McKee v. Wilcox, 11 Mich. 360; but see Farmer v. Simpson, 6 Tex. 310.

The estate or interest of the occupant, be it more or less, thereby becomes exempt from forced sales on execution, and can only be affected by voluntary conveyances or relinquishment in the mode prescribed. The land in this instance, as to everybody having no superior title, became the homestead of the defendant, for all the purposes of protection against forced sale and voluntary conveyance in any other manner than the statutory mode, as effectually as if the defendant had held the title in fee-simple. There was nothing which the sheriff was authorized to sell under execution. The fact that the defendant, after the attaching of the homestead right, acquired the true title from a stranger, does not affect the question. This did not vitiate the homestead right which had attached to the land, and given an independent estate not subject to execution. The title so acquired cannot be considered as a thing separate and apart from the land subject to sale and conveyance, in the hands of the homestead claimant, so as thereby to affect the homestead right. By filing the declaration, the party indicates his intention to make the land his homestead, and if he afterwards acquire an outstanding title, it attaches itself to the homestead already acquired and perfects the homestead right. If it were otherwise, a homestead could not be secured which would be safe against forced sales, unless there was at the time a perfect title in fee-simple in the party who seeks the homestead right. In case of a title in any respect imperfect, the claimant could not perfect his title to his homestead, except at the risk of losing it altogether, through the intervention of a creditor, and by the very means adopted to render it more secure; and under such a construction of the statute, it would not be available to the greater portion of the class in this State who need it most."1

57. After-acquired Title.-In the case referred to in the preceding section, the contest was between the claimant on one hand seeking to retain the benefit of the new acquisition by attaching it to the homestead estate, and the creditor, on the other hand, seeking to obtain and assert the new title

Spencer v. Geissman, 37 Cal. 99.

by treating it as independent of the homestead. This feature of the case seems to have strongly impressed the Court, and to have contributed materially to the success of the defendant. But suppose that the question had arisen between the heirs of the claimant upon the one hand and his widow on the other. Could she maintain that the title acquired subsequently to the declaration of homestead was also held in joint-tenancy, and that she, as survivor, had succeeded to the newly-acquired as well as to the original title? We think this question must be answered in the affirmative. The jointtenancy created by the dedication of the premises as a homestead is a tenancy in the homestead itself, and not in any specified title thereto; and this dedication, like a conveyance in fee with covenants of general warranty, seems to carry to the beneficiaries all interests thereafter acquired, and to consecrate those interests to the further perfection of the homestead right. The moment that the new acquisition becomes so attached to the homestead as to be safe from the creditors of the claimant, it must be deemed a part of the joint-tenancy; for the statute does not contemplate that any homestead interest should be free from the right of survivorship.

58. The conveyance, incumbrance, or other act of the husband alone, cannot, while the premises continue to be a homestead in fact, destroy or diminish the wife's right of homestead. When the fee of the premises remains in the husband subject only to the homestead rights of the wife, no doubt his conveyance passes the fee, but leaves it as before subject to the same right. The joint-tenancy held by the husband and wife, and created by the dedication of the premises as a homestead, is incapable of being destroyed, severed, alienated, or incumbered during the continuance of the marital relations. Nor can either keep alive or renew an incumbrance. After the filing of the declaration of homestead, the husband cannot prolong an existing mortgage or other charge upon the premises by giving a new note for the

Clark v. Shannon, 1 Nev. 568; Goldman v. Clark, 1 Nev. 607; Marshall v. Barr, 35 Ill. 106; Dye v. Mann, 10 Mich. 291: Williams v. Swetland, 10 Iowa, 51; Alley v. Bay, 9 Iowa, 509; Yost v. Devault, 9 Iowa, 60.

C. & P.-8

same indebtedness for the security of which such mortgage was given or such charge established.1

59. The limit of the homestead is sometimes fixed at a certain quantity of land, and sometimes at a certain value. In California, the homestead character cannot be at any one time impressed upon property of greater value than five thousand dollars. The joint-tenancy created by law in the homestead is liable to fluctuate in quantity to correspond with the fluctuation in value of the land, whereby it may sometimes exceed the statute limit, and at other times be exceeded by it. If at the time of filing the declaration the premises are of less value than five thousand dollars, they become a homestead, and so remain until their increasing value passes the statutory limit. The excess beyond this

limit is free from the homestead character. But if the increased value should not be permanent, no doubt the whole premises would again become homestead as soon as their value shrank to the statutory limit. "The homestead and the tests by which it is ascertained are the same, whether the question arises between those claiming the homesteed, or one of them and a vendee, a mortgagee, a creditor, or the heirs of the deceased husband or wife. There is not one homestead as against a creditor, and a different one when the survivor asserts his or her claims as against the heirs of the deceased. At its inception, it is limited to five thousand dollars in value, and when the property is enhanced in value so that it exceeds the statutory limit, the excess does not constitute a part of the statutory homestead. After the premises are worth five thousand dollars, every increase of value works a reduction in the area of the homestead, until a point is reached when it cannot be further cut down and leave a homestead of the value of five thousand dollars without material injury, and, after that point is reached, no part of the premises constitute a statutory homestead, but the value or proceeds of the premises, to the extent of five thousand dollars, has the benefit of the exemption from forced sale." It follows, from the views expressed in the preceding quotation,

1 Barber v. Babel, 36 Cal. 17.
Gregg v. Bostwick, 33 Cal. 225.

« ForrigeFortsett »