The appellant contends that the mortgaged premises cannot be sold on foreclosure, for the reason that, constituting the homestead of the defendant, Tice, they are protected from such sale by the Constitution ofthis State.
The Constitution of the State of California nowhere provides that the homestead shall not be sold on execution, or otherwise. Its language is, that " the Legislature shall protect by law, from forced sale, a certain portion of the homestead, and other property, of all heads of families." In this respect the Constitution of California differs essentially from that of Texas, under which the decision relied upon by appellants' counsel was made. That Constitution provides that the " homestead, etc., shall not be subject to forced sale for any debt hereafter contracted." There the Constitution gives the protection; here it only provides that the Legislature shall do so. A law is essential; and if the Legislature, in this respect, neglects its constitutional duty, it is not within the province of the judicial branch of the Government to supply the omission.
It is to be observed that it is a portion only of the homestead that is to be protected. The Legislature would fulfill its constitutional obligations by protecting a very small portion, either in quantity or in value. Until they declare what portion shall be protected, none can be.
The appellant must, therefore, look to the Act of the Legislature for his protection, and not to the Constitution.
The Legislature declares that the exemption granted shall not extend to " any mortgage, lawfully obtained."
The appellant is compelled to resort to the Act of the Legislature for protection of a homestead worth five thousand dollars. But, if he claim under the Act, he must take what the Act gives him. The Act gives one single, indivisible thing--protection to a homestead worth five thousand dollars, from sale on execution, but not from mortgage. The appellant must take the exemption as given, and with the limitation attached to it.
What we have said so far is on the assumption that the meaning of the Constitution is that mortgages, or mortgage sales of the homestead, shall be prohibited.
But a forced sale means an involuntary sale--a sale to which the owner has never consented. A mortgage confers a right to sell the mortgaged premises if the debt be not paid; it is properly, indeed, a conditional sale, to which Courts of Equity have attached a right of redemption after forfeiture.
In truth, the sale on a foreclosure of a mortgage is not required to enforce the rights of thecreditor, but is for the benefit of the debtor.
The power of Courts to declare void Acts passed by the Legislature, is exercised with great caution.
In cases affecting real estate, Courts are particularly scrupulous not to disturb, upon theoretical objections, that professional understanding of the law upon which titles rest. This is one of the few cases to which the maxim applies, communis error facit jus. (Brown's Legal Max. 104.)
The premises in question were not the homestead of Tice. " The homestead," says Chief Justice Murray, in Cook v. McChristian (4 Cal. 26), " is the dwelling place of the family, where they permanently reside." Tice's family, at the time of the execution of the mortgage, had never been in or upon the premises. Take the case of a man employed at the mines, and occupying a house there, while his wife and family lived in San Francisco. Would such house be the homestead--the family home?
The last point made by the appellant scarce requires a serious answer.
The statute provides that where the wife is not a resident of the State, her signature shall not be necessary to a conveyance or mortgage of the homestead.
The counsel contends, upon the authority of the case of Kashaw v. Kashaw, that the residence of the wife follows that of the husband, and that, in contemplation of the law, Mrs. Tice resided in California, although she actually resided elsewhere, and had never been within three thousand miles of the State.
The fiction (for it is often so), that the residence of the wife is that of the husband--like that from which it is derived, that the husband and the wife are one person, and like all other legal fictions--is employed where requisite to promote justice, but never to defeat it; to carry out the intention of the Legislature, but not to thwart it. It was applied in Kashaw v. Kashaw, to give effect to remedial statute; but the Court refused to apply where the effect would be to defeat the remedy. (Moffett v. Moffett, July T., 1855.)
JUDGES: The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Heydenfeldt and Mr. Justice Terry concurred.
OPINION
MURRAY, Judge
The evidence in this case shows, that Tice, being a married man, came to California in 1849; that he purchased a piece of property and resided on it; that in 1854 he mortgaged the same to the plaintiff, and that his wife came to the country after said mortgage was executed, and resided on the premises with her husband up to the time of bringing this suit. It further appears, that about the time of the execution of the mortgage, she was on her way to join her husband in California. This statement is sufficient upon its face to determine the rights of the parties. The premises never were impressed with the character of a homestead, until actual residence upon them by the family. If it were otherwise, every house in the State, in which, the owner being a married man, had slept a single night, would be prima facie a homestead, and there would be no end to the fraud and injustice that would result.
Upon the point that the Legislature can direct in what manner this species of property may be sold, or the tenancy destroyed, we have no doubt. The Constitution is inoperative of itself, and looks to legislation; and in acting upon this subject, it was a matter entirely within the discretion of the Legislature to determine how far, and in what manner, the homestead should be protected from forced sale.
Judgment affirmed.