By the Court, Currey, C. J.:
This action was brought on the 8th of October, 1864, to recover a lot of land in the City of San Francisco. It is averred in the complaint that in 1852 the lot was the common property of Hugh Casement and Emily, his wife, and so continued to be until the month of May, 1861, when the husband died, and that upon that event the lot became the abso[528]*528lute property of the said Emily. That before the commencement of the action the plaintiff became the owner of the lot by conveyance from said Emily. That the defendants have unlawfully entered into and had the possession of the property, which they held without right, adversely to the plaintiff. ' The answer of the defendants denies all the material allegations of the complaint, and further sets forth facts on which they claim affirmative relief. The cause came on for trial before the Court without a jury. The plaintiff’s counsel, in opening his case, made the following statement:
“Prior to the year 1852, Hugh Casement, Jr., intermarried with Emily Edwards, who is still living. There was no issue of such marriage. In the year 1852, one hundred vara lot Number Two Hundred and Ninety, in San Francisco, was, for a valuable consideration, conveyed by the then owner thereof to said Hugh Casement, Jr., who in the same year erected a house thereon, and with'his said wife actually resided upon it, and built a fence around said lot, and erected outhouses thereon. In 1854, Hugh Casement, Jr., while still residing on the lot with his said wife, mortgaged the lot to Henry W. Jones. His said wife did not execute said mortgage. Afterward, Casement, .still residing on the lot with his said wife, conveyed the lot, his wife not joining in the deed, to Spencer Thompson, who conveyed it to Jones, in satisfaction of Jones’ mortgage'. In 1855 Casement departed. from the State of California, leaving his said wife residing upon said lot and actually occupying it and claiming it as a homestead. In the same year Jones obtained from the wife Emily, who was still living on the lot, a deed to him of her interest in said lot; which deed was acknowledged before a Notary Public as a feme sole, and was signed and executed by her by the name of ‘ Emily Edwards,’ sometimes called Casement, and also as a feme covert. The deed was executed, acknowledged and delivered on the 2Sth day of June, 1855, for the consideration of four hundred and fifty dollars, then paid to her, and was witnessed by plaintiff’s attorney, Satterlee. The wife Emily still [529]*529continued to reside upon and occupy said lot as a homestead until the latter part of the year 1856, when she went to Australia to see her husband, but immediately returned to San Francisco. Upon her return she found Jones in the possession of said lot. Subsequently, Jones conveyed to Walter Ring-gold, through whom the defendants claim said lot and were in possession at the time of the commencement of this suit, and still remain in possession. Hugh Casement; Jr., the husband, never provided his wife Emily with any other homestead. Casement, the husband, died in Australia, sometime between March and July, in the year 1861. The wife, Emily, was then in San Francisco. She has not married again. She has had no children, and has not been the head of a family since her husband’s death. .Ho declaration of a homestead was ever made and recorded. On the 13th day of October, 1862, the said Emily conveyed an undivided half of said lot of land to John Satterlee, who afterwards, and before the commencement of this suit, conveyed his interest to the plaintiff. The plaintiff claims that said lot was the homestead of .Casement, and his said wife; that she never abandoned the homestead; that her husband never provided her with any other homestead, and that her deed to Jones was void.”
The counsel for defendant moved the Court to nonsuit the plaintiff on his opening, upon the following grounds, viz: that according to the plaintiff’s own statement no declaration of homestead had ever been made by Emily Casement or her husband, and that, therefore, she has no right whatever in the property.
The Court granted the motion and nonsuited plaintiff on the ground that no declaration of homestead was made, filed and recorded. To which decision the counsel for plaintiff then and there duly excepted.
The plaintiff in due'time moved the Court to set aside the nonsuit and to grant a new trial, on the ground that the Court [530]*530erred in nonsuiting the plaintiff. On this motion the plaintiff’s counsel made the following points:
First—The premises were a homestead, which was not abandoned.
Second—The homestead continued, because Casement did not provide his wife with another homestead.
Third—Casement’s mortgage and deed were void because his wife did not join in them.
Fourth—Emily Casement’s deed was void because her husband did not join with her; because he had not been absent from the State a year; and because she did not acknowledge the execution of the deed before a District Judge.
Fifth—At the death of Casement the time for making and recording a declaration of homestead had not expired; then the homestead became absolutely the sole property of the wife in fee. Thereafter she held it as absolute owner, by reason of its having been homestead at Casement’s death, and after that there was no necessity for making a declaration of homestead, and she could not, because she was no longer marridd and was the head of a family.
The "Court denied the plaintiff’s motion, and thereafter the appeal in this case was taken from the order denying the motion for a new trial.
Was the plaintiff entitled to recover upon the facts stated in the opening of his counsel, provided they were proved upon the trial ? These facts as presented are to be taken as literally true, and as to their sufficiency or insufficiency rests the cause.
In 1852 the premises in controversy became the homestead of Casement and his wife, and were such in 1854, when he executed a mortgage thereon to Jones, and also when he thereafter executed a deed of conveyance of the same premises to Thompson. (Cook v. McChristian, 4 Cal. 23; Taylor v. Hargous, 4 Id. 268; Reynolds v. Pixley, 6 Id. 166.) The mortgage and deed executed by the husband were not binding on his wife, because she did not join in their execution. (Laws 1851, p. 296, Sec. 2; Pease v. Barbiers, 10 Cal. 440.)
In a number of cases decided between the years 1851 and [531]*5311859 it was held that the homestead was an estate held, by the husband and wife in joint tenancy, and of consequence it became the absolute property of the survivor upon the death of the other. But in Gee v. Moore, 14 Cal. 477, these decisions were overruled on this point, and it was there declared that the doctrine that the estate was one of joint tenancy was not warranted by any language of the Constitution or the statute. The Court say: “ The estate rests where it existed before the premises were appropriated as a homestead. The appropriation of them confers a right upon the wife to insist that their character as a homestead shall continue until she consents to the alienation or another homestead is provided, or they are otherwise abandoned.
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By the Court, Currey, C. J.:
This action was brought on the 8th of October, 1864, to recover a lot of land in the City of San Francisco. It is averred in the complaint that in 1852 the lot was the common property of Hugh Casement and Emily, his wife, and so continued to be until the month of May, 1861, when the husband died, and that upon that event the lot became the abso[528]*528lute property of the said Emily. That before the commencement of the action the plaintiff became the owner of the lot by conveyance from said Emily. That the defendants have unlawfully entered into and had the possession of the property, which they held without right, adversely to the plaintiff. ' The answer of the defendants denies all the material allegations of the complaint, and further sets forth facts on which they claim affirmative relief. The cause came on for trial before the Court without a jury. The plaintiff’s counsel, in opening his case, made the following statement:
“Prior to the year 1852, Hugh Casement, Jr., intermarried with Emily Edwards, who is still living. There was no issue of such marriage. In the year 1852, one hundred vara lot Number Two Hundred and Ninety, in San Francisco, was, for a valuable consideration, conveyed by the then owner thereof to said Hugh Casement, Jr., who in the same year erected a house thereon, and with'his said wife actually resided upon it, and built a fence around said lot, and erected outhouses thereon. In 1854, Hugh Casement, Jr., while still residing on the lot with his said wife, mortgaged the lot to Henry W. Jones. His said wife did not execute said mortgage. Afterward, Casement, .still residing on the lot with his said wife, conveyed the lot, his wife not joining in the deed, to Spencer Thompson, who conveyed it to Jones, in satisfaction of Jones’ mortgage'. In 1855 Casement departed. from the State of California, leaving his said wife residing upon said lot and actually occupying it and claiming it as a homestead. In the same year Jones obtained from the wife Emily, who was still living on the lot, a deed to him of her interest in said lot; which deed was acknowledged before a Notary Public as a feme sole, and was signed and executed by her by the name of ‘ Emily Edwards,’ sometimes called Casement, and also as a feme covert. The deed was executed, acknowledged and delivered on the 2Sth day of June, 1855, for the consideration of four hundred and fifty dollars, then paid to her, and was witnessed by plaintiff’s attorney, Satterlee. The wife Emily still [529]*529continued to reside upon and occupy said lot as a homestead until the latter part of the year 1856, when she went to Australia to see her husband, but immediately returned to San Francisco. Upon her return she found Jones in the possession of said lot. Subsequently, Jones conveyed to Walter Ring-gold, through whom the defendants claim said lot and were in possession at the time of the commencement of this suit, and still remain in possession. Hugh Casement; Jr., the husband, never provided his wife Emily with any other homestead. Casement, the husband, died in Australia, sometime between March and July, in the year 1861. The wife, Emily, was then in San Francisco. She has not married again. She has had no children, and has not been the head of a family since her husband’s death. .Ho declaration of a homestead was ever made and recorded. On the 13th day of October, 1862, the said Emily conveyed an undivided half of said lot of land to John Satterlee, who afterwards, and before the commencement of this suit, conveyed his interest to the plaintiff. The plaintiff claims that said lot was the homestead of .Casement, and his said wife; that she never abandoned the homestead; that her husband never provided her with any other homestead, and that her deed to Jones was void.”
The counsel for defendant moved the Court to nonsuit the plaintiff on his opening, upon the following grounds, viz: that according to the plaintiff’s own statement no declaration of homestead had ever been made by Emily Casement or her husband, and that, therefore, she has no right whatever in the property.
The Court granted the motion and nonsuited plaintiff on the ground that no declaration of homestead was made, filed and recorded. To which decision the counsel for plaintiff then and there duly excepted.
The plaintiff in due'time moved the Court to set aside the nonsuit and to grant a new trial, on the ground that the Court [530]*530erred in nonsuiting the plaintiff. On this motion the plaintiff’s counsel made the following points:
First—The premises were a homestead, which was not abandoned.
Second—The homestead continued, because Casement did not provide his wife with another homestead.
Third—Casement’s mortgage and deed were void because his wife did not join in them.
Fourth—Emily Casement’s deed was void because her husband did not join with her; because he had not been absent from the State a year; and because she did not acknowledge the execution of the deed before a District Judge.
Fifth—At the death of Casement the time for making and recording a declaration of homestead had not expired; then the homestead became absolutely the sole property of the wife in fee. Thereafter she held it as absolute owner, by reason of its having been homestead at Casement’s death, and after that there was no necessity for making a declaration of homestead, and she could not, because she was no longer marridd and was the head of a family.
The "Court denied the plaintiff’s motion, and thereafter the appeal in this case was taken from the order denying the motion for a new trial.
Was the plaintiff entitled to recover upon the facts stated in the opening of his counsel, provided they were proved upon the trial ? These facts as presented are to be taken as literally true, and as to their sufficiency or insufficiency rests the cause.
In 1852 the premises in controversy became the homestead of Casement and his wife, and were such in 1854, when he executed a mortgage thereon to Jones, and also when he thereafter executed a deed of conveyance of the same premises to Thompson. (Cook v. McChristian, 4 Cal. 23; Taylor v. Hargous, 4 Id. 268; Reynolds v. Pixley, 6 Id. 166.) The mortgage and deed executed by the husband were not binding on his wife, because she did not join in their execution. (Laws 1851, p. 296, Sec. 2; Pease v. Barbiers, 10 Cal. 440.)
In a number of cases decided between the years 1851 and [531]*5311859 it was held that the homestead was an estate held, by the husband and wife in joint tenancy, and of consequence it became the absolute property of the survivor upon the death of the other. But in Gee v. Moore, 14 Cal. 477, these decisions were overruled on this point, and it was there declared that the doctrine that the estate was one of joint tenancy was not warranted by any language of the Constitution or the statute. The Court say: “ The estate rests where it existed before the premises were appropriated as a homestead. The appropriation of them confers a right upon the wife to insist that their character as a homestead shall continue until she consents to the alienation or another homestead is provided, or they are otherwise abandoned. The wife, if surviving her husband, takes the homestead, not by right of any survivor-ship arising from the alleged joint tenancy, but as property set apart by law from her husband’s estate for her benefit and that of his children, if there be any.” The doctrine of the case here cited was affirmed in Bowman v. Norton, 16 Cal. 216, and was followed in Brennan v. Wallace, 25 Cal. 114. These several cases had reference to the homestead estate as created under the law as it existed prior to the passage of the Act of I860, and must be deemed as settling the construction relating to the subject as then existing. The Act of 1860, (Laws 1860, p. 311,) which was amendatory of the Act of 1851, provided that a homestead might be selected by either husband or wife, or by both of them, or other head of a family, by declaration in writing of intention so to do. Such declaration was required to be signed, and acknowledged and recorded ; and the Act then provided that “ from and after the filing for record of said declaration, the husband and wife shall be deemed to hold said homestead as joint tenants;” and then it is further provided that “ all homesteads heretofore appropriated and acquired by husband and wife under the Act to which this is amendatory, shall be deemed to be held by such husband and wife in joint tenancy.”
We have seen that by the decisions in the cases of Gee v. Moore, and Bowman v. Norton, it was held that the relation [532]*532of husband and wife in respect to the homestead appropriated and acquired under the Act of 1851, was not a joint tenancy; and regarding these decisions as declaring the law correctly, we are brought to the inquiry whether, by the Act of 1860, that relation was created as to homesteads before then acquired, and if so, whether, by force of the statute, such a change was wrought that each party became invested with an indefeasible estate in the homestead as joint tenants, discharged of all conditions. By.the fifth section of the Act of. 1860 it was declared that “ all parties entitled to homesteads under the. Act to which this Act is amendatory shall be entitled to the benefit of the provisions of this Act; and such homesteads shall be protected to the same extent and in the same manner as if acquired under the provisions of this Act. And no rights acquired under said Act shall be lost or in any way impaired by reason of any provisions contained in this Act; provided, that all parties holding and claiming homesteads under the provisions pf said Act shall have one year from and after the passage of this Act in which to prepare and file for record the declaration required by section first of this Act; and in making such declaration it shall not be necessary, in cases where there has been a prior actual occupancy by the family of the homestead, and a subsequent temporary abandonment, to allege the actual residence, at the time of such declaration, on the premises and then follows a provision that “ in case there be no such declaration filed within one year, the homestead shall be deemed to have been abandoned.” This Act was approved on the 28th of April, 1860, and took effect from and after its passage. By an Act of 1861 the time for preparing and filing for record the declaration of homestead as provided in the fifth section of the Act of 1860, was extended to and including the 28th of April, 1862. (Laws 1861, p. 232.)
The amendments contained in the Act of 1860 must be considered together and in pari materia with the provisions of the Act of 1851, in order to ascertain what rights and interests were brought into being by force of these Acts of the Legislature acting upon given conditions precedent to their possible [533]*533operation. The first section of the Act of 1860 provides that all homesteads heretofore appropriated and acquired by husband and wife under the Act of .1851 shall be deemed to be held by such husband and.wife in joint tenancy. Had the Act stopped with this provision it might well be said, first assuming that the Legislature had the power thus to create a particular estate, that by this language a joint tenancy was created in respect to all homesteads then acquired and existing under the Act of 1851; but it does not stop here. The fifth section provides that those entitled to homesteads under the Act of 1851, shall be entitled to -the benefits of the Act of 1860, and that such homesteads shall be protected to the same extent and in the same manner as if acquired under the provisions of the Act of 1860; that is, by making a declaration of intention to claim the premises selected as a homestead, and signing, acknowledging and recording such declaration; provided, however, that if any person thus claiming a homestead under the Act of 1851 makes no such declaration in the mode and within the term prescribed, the homestead which he or she had under the Act of 1851 shall be deemed to have been abandoned.
By the Act of 1860 it was declared that the homestead, which before then was not an estate held in joint tenancy, should be deemed to be held by the husband and wife in joint tenancy; provided, however, that in respect to such homestead the prescribed declaration was made, signed, acknowledged and recorded. If the Legislature had the power thus to create a particular estate, then, as the creating power, the same body had the power to prescribe the conditions essential to its creation, and also to declare what consequences should follow by an omission to perform them.
That no declaration of homestead was ever made and recorded was an omission of plaintiff’s counsel in his opening, and upon this admission, with others made at the same time in respect to thé conveyance of the property by Hugh Casement, the husband, the Court nonsuited the plaintiff. According to the cases of Gee v. Moore, and Bowman v. Norton, the mortgage [534]*534executed by Casement to Jones and the conveyance of the premises to Thompson were not void. The conveyance existed as valid, subject to the right of the husband and wife to the property as a homestead, until its character as such had ceased. And when it ceased the defendants who acquired it by conveyances from Casement’s grantee became entitled to its actual possession and enjoyment.
It is argued on behalf of the plaintiff that as the husband died after the passage of the Act of 3860, and before the time had elapsed within which a declaration of homestead might be made, acknowledged and recorded, the wife took the whole property as surviving joint tenant upon the death of the husband, and then became the owner in fee simple absolute of the premises; and that, as a consequence of the concurrence of these circumstances, there was no necessity to make and record a declaration of homestead in order to secure to her the property which already belonged to her as owner thereof in fee. We have already considered the ground on which, if we are right in our interpretation of the homestead laws, it must readily appear wherein the argument of the learned counsel is at fault.
We are of the opinion the nonsuit was properly granted.
The judgment must be affirmed, and it is so ordered.