As to the point contended for by appellants, that the privilege of the homestead being a personal one, and creating no estate beyond a mere personal privilege; in the case of Taylor v. Hargous, (4 Cal. 268,) this Court held a differentdoctrine.
There the Court say, that as soon as the place, by the occupancy in good faith by the family, acquires the character of a homestead, the estate is turned into a sort of joint-tenancy, with the right of survivorship as between husband and wife, which estate cannot be altered or destroyed except by the concurrence of both, in the manner provided by law; thus clearly repudiating the doctrine contended for by appellants upon this point. It is submitted that this proposition of appellants is erroneous, and that Dorsey, the respondent, acquired all the rights of Abila and wife, whilst McFarland and Downey acquired no rights whatsoever, either by the mortgage or judgment.
It is claimed by the appellants that the equities are equal; that both mortgages were taken in good faith, as well that of McFarland and Downey as those of Dorsey.
It is submitted that this proposition is incorrect, and that McFarland and Downey were not mortgagees in good faith. The complaint states, and the findings of the Court show, that the premises upon which they took their mortgage, were the residence and homestead of Abila and wife; and had so been for many years previous to the taking ofthe same, and ever since had been; hence their mortgage was a fraud upon the rights of the wife. Their long residence upon the same was notice to all the world of their rights, and the dedication of the same as a homestead. The doctrine is fully established by this Court in the case of Cook & Burgwall v. McChristian , 4 Cal. 23.
It is further submitted that the mortgage of McFarland and Downey was a nullity, as also the judgment upon the same, so far as the husband and wife, or any other person claiming under them, was concerned.
The husband could not convey or hypothecate; the husband and wife could. See section two of the Homestead Law, Comp. Laws, 850. Hence, the husband having no capacity to convey the homestead without the signature of the wife, the mortgage of McFarland and Downey gave them no more rights than if the same had been executed by a third person who had no interest whatever in the premises, whilst the mortgage of Dorsey executed by husband and wife, gave him all the rights of a mortgagee in good faith. It is contended by appellant, that Dorsey took his mortgage with notice of McFarland and Downey's claim. It is submitted that this proposition is untenable. He took his mortgage, in other words, with notice that they had no claim whatever, as the residence of Abila and family gave notice to all the world that the premises mortgaged were their homestead; hence Dorsey had notice of what? Merely that McFarland and Downey had a mortgage which the law declares to be invalid; and can it be pretended that a mortgage made by a person having no right to make the same, would prevent him from taking a mortgage or conveyance from the persons having a right to mortgage or convey, and thereby make him a mortgagee or grantee in bad faith?
The same doctrine is fully established in the case of Sargeant v. Wilson , 5 Cal. 504; also in Poole v. Gerrard , 6 Cal. 71; also in McHenry v. Moore , 5 Cal. 90.
JUDGES: Burnett, J., after stating the facts, delivered the opinion of the Court. Murray, C. J., concurring.
OPINION
BURNETT, Judge
The only point in this case is, whether the plaintiff can urge the same objections against the mortgage to McFarland and Downey as would be good, if urged by Abila and wife. In other words, is the mortgagee of Abila and wife in a worse condition than they are? It is contended by the learned counsel for defendants, that the right of homestead is a personal privilege, which can only be asserted by the individuals to whom it appertains, and that the power to assert cannot be transferred or conveyed to another.
The decisions of this Court in the different cases brought up before us, would seem to have settled principles, by the legitimate application of which this case can be determined. The facts and circumstances of this case, it is true, differ from those of any preceding case.
In the case of Cooke v. McChristian , 4 Cal. 23, this Court held that the " homestead" was the dwelling-place of the family; that the residence of the family upon the premises would raise the prima facie presumption that they were held as the " homestead," and would be notice to all the world. In the case of Taylor v. Hargous , 4 Cal. 268, this decision is affirmed, and it was held in the latter case, that the removal of the husband and wife, after a sale by the husband in which the wife did not join, was not an abandonment of the right of homestead, and no evidence of such abandonment. In this same case it was held that the estate in the homestead was " a sort of joint-tenancy, with the right of survivorship, at least as between the husband and wife, and this estate cannot be altered or destroyed, except by the occurrence of both in the manner provided for by law." (4 Cal. 273; Morse v. McCarty, July T., 1856.)
In the case of Poole v. Gerrard , 6 Cal. 71, it was decided that separate deeds, executed by husband and wife, are invalid, and that a joint deed of husband and wife was required. In the case of Sergeant v. Wilson et al. , 5 Cal. 506, it was held that a sale of the homestead by the husband alone, is not absolutely void, but only void as to the homestead value.
It is clear from these decisions, that the mortgage of Abila to McFarland and Downey was void as to the homestead value, and that if the premises were worth not exceeding $ 5,000, they took nothing. It is equally clear that the husband and wife had the right to sell in the proper mode. The statute does not intend to trammel the alienation of the homestead, except so far as to require the free assent of the two proprietors, in the mode prescribed.
If, therefore, the position of defendants be correct, then the wrongful act of the husband in executing the first mortgage, would, practically, prevent the husband and wife from executing any subsequent mortgage or alienation, until, by a suit, they had set aside the first mortgage. For, if Dorsey could gain no right to set aside the first mortgage, then it would have been worse than idle for him to have taken the mortgages to himself. And a purchaser would be in the same condition. The legitimate result of such a rule would be to allow to the husband alone the power to obstruct, in advance, the free exercise of the right of alienation belonging to both husband and wife. This would be inconsistent with the rights incident to the ownership of property.
It has been justly settled, in cases of fraudulent sales of real estate, that if the title once vests in an innocent purchaser, any one can afterwards purchase of him with full knowledge of the original fraud; otherwise, the innocent purchaser could not enjoy the full right of alienation, and his property would be consequently diminished in value. The same principle applies in this case. The act of the husband being void, did not impair the right to sell the homestead with the same effect as if the mortgage had never been executed. And the fact, that Dorsey knew of its existence at the time his mortgages were executed, did not affect his right in the least. He knew the title was still in Abila and wife, and that the mortgage to McFarland and Downey was void. The rights of Dorsey, under his mortgages, being established, his right to set aside the judgment of foreclosure upon the mortgage to McFarland and Downey, is not denied. The judgment was a cloud upon the title, and would impair the value of the security.
Judgment affirmed.