In an action to secure the rights of homestead, the husband and wife must both join, without which the Court cannot consider the case. (Poole v. Gerrard , 6 Cal. 71; Kraemer v. Revalk , 8 Cal. 74.)
An action must be brought by husband and wife where the cause of action would necessarily survive to her. (5 Bac. Ab. 299, and fol.; 1 Chitty on Pl. 9, and fol.; 1 Monell's Pr. 321; 11 Wend. 271; 18 Johns. 443; 4 Kent, 380.)
In Cook v. McChristian, (4 Cal. 23,) and all subsequent decisions, the following proposition is laid down: The homestead is the dwelling-place of the family, where they permanently reside. And in Reynolds v. Pixley, (6 Cal. 165,) it is declared that " residence is the test by which the fact of dedication of a homestead is to be determined."
The rule thus laid down is reasonable, and, in the absence of a provision in the statute requiring notice, is the only feasible mode by which notice can be imparted.
In the case of Holden v. Pinney, (6 Cal. 234,) it is declared that when the premises have acquired the character of a homestead by actual occupation, with that intention, the estate thus created cannot be destroyed except by the concurrence of both husband and wife; neither will their removal from the premises operate as an abandonment.
The question of homestead is a question of fact, and the presumption arising from residence may be defeated by facts and circumstances aliunde .
If residence will establish the fact of an intention to dedicate property as a homestead, it is difficult to understand why a removal from such premises, and a residence elsewhere for a longer period, will not establish the fact of abandonment. I know of no principle of law in conflict with such a conclusion, and it is certainly in consonance with common sense, equity, and justice. The law intends one dedication only. The decisions of the Supreme Court require residence to establish that intention. So far, the benevolent purpose, both of the law-makers and of the law itself, are carried into effect. But if a party can impress a dozen localities with the character of a homestead by a short residence with his family upon each, he practically acquires a legal right to a dozen homesteads, instead of one. This would seem to involve an absurdity. The principles which have been from time to time enunciated by the Supreme Court in relation to the rights of homestead, present apparent inconsistencies, if not contradictions, and the great importance of the subject, both to the public at large as well as to individual citizens, would seem to demand that the interests involved in those rights should be more clearly defined.
The decision last referred to does not affect the rights of the defendant in this action, for it permits the Court and the jury to determine from the facts of the case whether or not the property in question was ever dedicated as a homestead.
The evidence of record discloses the fact that shortly after Dunn and his family went upon the property, Dunn placed it in charge of an agent for sale, who advertised and sought to sell it. The efforts were continued until the sale by the Sheriff. Dunn and his wife both declared, at different times, that they did not intend to and would not remain there, and Dunn stated that his object in selling was to obtain money to buy stock for his rancho. During this time, Dunn and his family resided upon a rancho in Petaluma, but had an agent and Attorney here. The above facts and circumstances must necessarily defeat the presumption arising from the residence of Dunn and his family upon the premises.
JUDGES: Burnett, J., delivered the opinion of the Court. Terry, C. J., concurring.
OPINION
BURNETT, Judge
The plaintiff claimed the lots in dispute as a homestead. They were sold by the defendant White, as Sheriff of Sacramento County, to defendant Tozer, under an execution against the plaintiff, and a certificate of sale executed by the Sheriff. This was a bill to set aside the certificate, and to restrain the Sheriff from executing a deed to Tozer. The Court below dismissed the plaintiff's bill, and the plaintiff appealed.
It is objected in this Court, for the first time, by the counsel of defendant Tozer, that the wife of plaintiff was not joined with him in the suit. This defect was apparent upon the face of the complaint, and the defendant might have demurred. The counsel of plaintiff insists that the objection was waived by a failure to demur.
It has been repeatedly decided by this Court, that where a defect of parties is apparent upon the face of the complaint, the objection must be taken by demurrer, or the same will be waived (Warner v. Wilson , 4 Cal. 310; Andrews v. Mokelumne Hill Company , 7 Cal. 330; Alvarez v. Brannan, Id. 503.)
It is expressly provided, in Section forty-five of the Code, that an objection of this character, if apparent upon the face of the complaint, is waived by a failure to demur.
Having disposed of this point, we come to the merits of the case. It appears that the plaintiff purchased the property in the month of April, 1855, with the intention of making it a home for his family; that he moved to and resided with his family upon the premises for about thirteen months. About the time the plaintiff purchased the premises in controversy, he owned a farm, which he sold; and with the proceeds of the sale, the witness thought he purchased the lots and improvements, which are of the value of $ 2,500.
The fact of the dedication of the premises as a homestead seems to have been satisfactorily established. It was clearly proved that the plaintiff declared, at the time he was purchasing the property, and afterwards, that he designed it for a homestead; and he resided with his family upon the place for some thirteen months, when he left and went to Petaluma to occupy rented land for the purpose of carrying on a dairy. It was shown that the plaintiff owned no other real estate.
For the purpose of rebutting this proof, and for the further purpose of proving an abandonment of the homestead, the defendants proved that plaintiff, in January or February, 1856, employed J. R. Adkins to sell the property--the plaintiff stating that he must sell for cash, as he intended to purchase stock for his rancho with the proceeds. Shortly after the agent was employed he visited the premises, and Mrs. Dunn stated that she was fully satisfied with her husband's purpose to sell the place--that she could not live there, and would never return to it if she could get away. The plaintiff, likewise, told the agent that the family could not live there, as their animals had been poisoned, and they desired a more active life. The property was advertised and put up at auction, and bid in by some one for the plaintiff. The plaintiff and family left in May, 1856, and the premises were sold by the Sheriff on September 23d, 1856. The defendants also proved, by a witness to whom the plaintiff had rented the property, that the plaintiff declared, about the time he left for Petaluma, he wished to sell the premises because he thought them bewitched. But we cannot see, in all this, any evidence either that the plaintiff and wife never intended to dedicate the premises as a homestead, or that they intended to abandon them after they were so dedicated. The plaintiff sold his farm about the time he purchased the premises, and afterwards owned no other place he could call his homestead; he rented out the property and left an agent to collect the rents, and came several times to see about it. The tenant, having failed to pay the rent, and refusing to give up the property, was sued by the plaintiff, and expelled by the process of the law. The fact that both husband and wife were anxious and willing to sell the place, for the reasons stated, and that repeated efforts were made by the husband to accomplish this purpose, (which efforts failed because a satisfactory price could not be had,) does not show any intention to abandon, but only to sell, their homestead. All the conduct of husband and wife was strictly consistent with their homestead right. No deed was offered to be made by the husband alone for the property.
Besides this view of the case, it seems clear, from the testimony, that plaintiff and his wife had no wish to sell the premises until some nine months after they were dedicated as a homestead. They had become joint owners of the property, with the right of survivorship; and their declarations and removal from the premises could not constitute an abandonment. The declarations of the husband could not bind the wife; and the act of going with her husband to reside upon another place could in no way affect her right. There is only one way in which the right of the wife to the homestead can be extinguished, and that is by a joint deed, executed by both husband and wife, and properly acknowledged by the wife. (Dorsey v. McFarland , 7 Cal. 342; and the cases there cited.)
The right of homestead having once attached, and not having been alienated, the deed from the Sheriff would be a cloud upon the title, and prevent the free alienation of the property by husband and wife. (Dorsey v. McFarland .)
Under the view we have taken, the decree of the District Court must be reversed, and the cause remanded, with directions to enter a decree for plaintiff.