Poole v. Gerrard

6 Cal. 71

Opinion

The opinion of the Court was delivered by Mr. Justice Heydenfeldt.

Mr. Justice Terry concurred.

The Court below erred in deciding that the deed of the plaintiff conveyed all her interest in the property. In Simpers & Crammer v. Sloan, (5 Cal. R.,) at the October Term, 1855, we held “ that a feme covert has no power to make a contract.”

To make a valid sale of the homestead requires the joint deed of husband and wife. The husband must make the contract and the wife must assent to it by an examination separate and apart from her husband. This is the mode pointed out by the statute, and it must be strictly pursued. Cook v. McChristian, 4 Cal. R.

It seems therefore in this case, that both the deeds separately executed, of Poole and his wife, are invalid.

On the other hand, the wife has no right to sue alone. In Taylor v. Hargous, (4 Cal. R.,) we decided that the homestead was a joint estate in husband and wife, with the right of survivorship. It results from that decision that it is neither common property, which would enable the husband to sue alone, nor is it the separate estate of the wife, in which case only she would be enabled to sue alone.

She should have joined her husband in the action and he would not have been estopped by a void deed.

The Court therefore erred in overruling the demurrer.

The judgment below is right upon this ground, but to prevent any question of pre-adjudication in another suit, it is most proper here to reverse the judgment, and also the order overruling the demurrer, and remand the case with instructions to the Court below to sustain the demurrer.

Ordered accordingly.