In Cook v. McChristian, this Court said the homestead is the dwelling-place of the family, where they permanently reside. Then the Court has supplied the omission in the statute in respect to notice, by holding that actual occupation by the family is necessaryto constitute notice. Now the family of McHenry had not resided upon this property at the time the mortgage was given. If the wife had been continually absent, how could there have been an actual residence of the family? How could this lot have been the " dwelling-place" of the family? If the family did not dwell upon the premises, there could not have been no notice imparted to the respondent, and the appellant seeks to make him suffer loss, when want of prudence is not imputed to him.
When the Legislature used the word " reside," it must have been intended in the sense of " to live." The Act intended an actual and not a constructive presence.
JUDGES: Burnett, J., after stating the facts, delivered the opinion of the Court. Murray, C. J., concurring.
OPINION
BURNETT, Judge
As to the action of the Court below in refusing to set aside any portion of the mortgaged premises as a homestead, we think there was no error. The point was settled in the case of Cary v. Tice , 6 Cal. 625. The phrase " resident of this State," in the second section of the Homestead Act, means an actual and not a constructive presence.
We think that there was no error in the action of the Twelfth District Court after the commencement of the proceedings in insolvency. It is true, that under the provisions of the fourteenth section of the Act, " all suits brought against the insolvent debtor anterior to his surrender of property before the Courts of other counties, shall be transferred to the Court having jurisdiction in the county in which said insolvent shall have presented his schedule." But this provision relates to suits other than those for the enforcement of liens or mortgages, as is shown by the proviso to the thirty-sixth section. In such cases the proceedings are not affected by the pendency of the case of insolvency, and should there remain a surplus after discharging the lien and costs, the assignees would be entitled to it.
As to the position that the order of the Fourteenth District Court setting aside lot " two" of the mortgaged premises as a homestead, precluded the plaintiff from his remedy upon the mortgage, we think it entirely untenable, upon every principle of law and justice. The only effect of this action of the Fourth District Court was a protection of the homestead against other creditors, while it did not touch the rights of the several mortgagees.
The other points in the case it is unnecessary to decide.
The judgment of the Court below is affirmed.