Burnett, J., after stating the facts in the case, delivered the opinion of the Court—Murray, C. J., concurring.
The plaintiffs should have brought their suit in the District, and not in the Superior Court. When the plaintiff, John Revalk, appeared and answered in the case brought by defendants, Kraemer and Eisenhardt, to foreclose the mortgage, the plaintiffs in that suit—defendants in this—should have insisted that Mrs. Revalk be made a party. Revalk and wife not appearing in that suit, could not bring a suit in the Superior Court to restrain the decree of a Court of co-ordinate jurisdiction. John Ritts and wife v. Wm. iSTeely Johnson, and others, decided at the present term of this Court.
This would be sufficient to dispose of this case, but as other points are raised by the record, and discussed by counsel on both sides, and must be decided sooner or later, to settle this controversy, we will proceed to their examination.
The first point made by the counsel for the defendants is :
“ That inasmuch as the property in question was owned by John Revalk before his marriage, and was therefore separate property, there could be no homestead created of it by the mere residence of the wife thereon, before marriage.”
The fifteenth section of article eleven of the Constitution, provides, “ 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 provision, the homestead to be protected, is called the property of the head of the family. And in the first and second sections of the act to exempt the homestead and other property from forced sale, (Com. Laws, 850,) the head of the family is called “ the owner ” of the homestead.
It would seem clear, from these provisions, that the separate property of the husband may become the homestead, as well as the community property acquired after marriage. It is the duty of the husband to furnish a home for the family, and the taking the wife to reside upon his separate property, is the voluntary act of the husband, and by this act he makes it the homestead, with all the incidents attached to it.
But it may admit of great doubt whether the separate property of the wife can become the homestead. There is an express provision of the Constitution which says, that all property of hers acquired in a certain manner, shall be her separate property. Article XI, § 14. There is no such provision in reference to the husband. This being a constitutional provision, it may admit of much doubt, whether the mere act of the wife, of residing with her husband on the premises, can be construed into a change of her right with respect to her separate property. It is her duty to live with her husband, and her removal with him from the homestead has been held no abandonment. 4 Cal. Rep., 273; [72]*72Selover v. American Commercial Company, January Term, 1857. Besides, there is no necessity for the Legislature to extend the right of homestead to the separate property of the wife, for the reason that it is already protected from forced sale, because it is hers. It is not responsible for the husband’s debts, and can only be sold by the free consent of the wife. But in reference to this question, as it does not necessarily arise in this case, we do not express any decided opinion.
The second point made by the counsel of defendants is “ that the action brought in the Twelfth District Court, for the foreclosure of the respondent’s mortgage, and the decree made thereon, was a perfect bar to the present action.”
The wife was no party to the suit in the District Court, and could not in any way be affected thereby; nor could the rights of the husband, as to the homestead, be affected by the proceedings in that case. When the husband appears alone and defends the suit, his right to the homestead is no more concluded by the decision, than by his separate execution of the deed or mortgage.
Legal proceedings to be conclusive against either, must embrace both. The separate answer of Bevalk, for himself, did not constitute any defence.
If these views be correct, then the result of the mortgage suit did not conclude Bevalk and his wife, or either of them. It is true that they were bound to bring their suit in the District Court if they wished to restrain the sale.
The third and last point made by the counsel of the defendants is : “ That the death of the wife of appellant, gave the husband such an estate as enured to the benefit of the mortgage made by him alone, during his wife’s life, to respondents.”
This question may properly be considered under two aspects:
1. Whether the privilege of the homestead ceases, when the party ceases to be the head of the family.
2. Conceding that it does, in what manner would the title enure to the benefit of creditors ?
The leading idea, upon which the Constitution and statute are both predicated, is the protection of the family. To carry out this intent, the homestead of the head of the family is protected from forced sale. Any individual of either sex may be the head of a family. It is not necessary that the head of a family should be a married person.
But, unless the person is the head of the family, the right of homestead cannot exist. And cannot the same person, at one time, be the head of a family, and not at another ? And if the privilege is an incident to a certain state, and that state itself ceases, why should not the incident fall with it ? As the primary object of the law was the protection of the family, when the family ceases to exist the reason for the privilege is gone; and why should not the privilege itself also cease ? As the end con[73]*73templated by the law can no longer be attained, why should the means be preserved when they are no more wanted ? As the law will not allow an individual the right of homestead before he becomes the head of a family, why should it allow him this right after he ceases to be such ? The very reason why the law will not allow it in the one case, is equally applicable in the other. When an individual has not been, or has ceased to be, the head of a family, the law cannot anticipate that he will thereafter become such, in either case. When he does, in fact, become the head of a family, then the law protects him for their benefit. He is the representative of the family. But when there is no family to protect, will the law defeat the just claims of creditors for the purpose of accomplishing no beneficial end ? It is true the party once had a family, and he also once had protection for that family; but since the family has ceased to exist, the protection is not needed. The law intended to protect individuals Avhile bearing certain relations towards each other. When that relation ceases, the cause of the protection is gone. The reason ceasing, the rule ceases. The privilege and responsibility must go together. One is rightful^ dependent upon the other. When the individual has no longer the cares of a family, the law should not still protect him as if he had; he should only be protected as others are, who are at present in the same state. The law does not look to his past, or future, but to his present, condition.
In the case of Taylor v. Hargous, 4 Cal.
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Burnett, J., after stating the facts in the case, delivered the opinion of the Court—Murray, C. J., concurring.
The plaintiffs should have brought their suit in the District, and not in the Superior Court. When the plaintiff, John Revalk, appeared and answered in the case brought by defendants, Kraemer and Eisenhardt, to foreclose the mortgage, the plaintiffs in that suit—defendants in this—should have insisted that Mrs. Revalk be made a party. Revalk and wife not appearing in that suit, could not bring a suit in the Superior Court to restrain the decree of a Court of co-ordinate jurisdiction. John Ritts and wife v. Wm. iSTeely Johnson, and others, decided at the present term of this Court.
This would be sufficient to dispose of this case, but as other points are raised by the record, and discussed by counsel on both sides, and must be decided sooner or later, to settle this controversy, we will proceed to their examination.
The first point made by the counsel for the defendants is :
“ That inasmuch as the property in question was owned by John Revalk before his marriage, and was therefore separate property, there could be no homestead created of it by the mere residence of the wife thereon, before marriage.”
The fifteenth section of article eleven of the Constitution, provides, “ 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 provision, the homestead to be protected, is called the property of the head of the family. And in the first and second sections of the act to exempt the homestead and other property from forced sale, (Com. Laws, 850,) the head of the family is called “ the owner ” of the homestead.
It would seem clear, from these provisions, that the separate property of the husband may become the homestead, as well as the community property acquired after marriage. It is the duty of the husband to furnish a home for the family, and the taking the wife to reside upon his separate property, is the voluntary act of the husband, and by this act he makes it the homestead, with all the incidents attached to it.
But it may admit of great doubt whether the separate property of the wife can become the homestead. There is an express provision of the Constitution which says, that all property of hers acquired in a certain manner, shall be her separate property. Article XI, § 14. There is no such provision in reference to the husband. This being a constitutional provision, it may admit of much doubt, whether the mere act of the wife, of residing with her husband on the premises, can be construed into a change of her right with respect to her separate property. It is her duty to live with her husband, and her removal with him from the homestead has been held no abandonment. 4 Cal. Rep., 273; [72]*72Selover v. American Commercial Company, January Term, 1857. Besides, there is no necessity for the Legislature to extend the right of homestead to the separate property of the wife, for the reason that it is already protected from forced sale, because it is hers. It is not responsible for the husband’s debts, and can only be sold by the free consent of the wife. But in reference to this question, as it does not necessarily arise in this case, we do not express any decided opinion.
The second point made by the counsel of defendants is “ that the action brought in the Twelfth District Court, for the foreclosure of the respondent’s mortgage, and the decree made thereon, was a perfect bar to the present action.”
The wife was no party to the suit in the District Court, and could not in any way be affected thereby; nor could the rights of the husband, as to the homestead, be affected by the proceedings in that case. When the husband appears alone and defends the suit, his right to the homestead is no more concluded by the decision, than by his separate execution of the deed or mortgage.
Legal proceedings to be conclusive against either, must embrace both. The separate answer of Bevalk, for himself, did not constitute any defence.
If these views be correct, then the result of the mortgage suit did not conclude Bevalk and his wife, or either of them. It is true that they were bound to bring their suit in the District Court if they wished to restrain the sale.
The third and last point made by the counsel of the defendants is : “ That the death of the wife of appellant, gave the husband such an estate as enured to the benefit of the mortgage made by him alone, during his wife’s life, to respondents.”
This question may properly be considered under two aspects:
1. Whether the privilege of the homestead ceases, when the party ceases to be the head of the family.
2. Conceding that it does, in what manner would the title enure to the benefit of creditors ?
The leading idea, upon which the Constitution and statute are both predicated, is the protection of the family. To carry out this intent, the homestead of the head of the family is protected from forced sale. Any individual of either sex may be the head of a family. It is not necessary that the head of a family should be a married person.
But, unless the person is the head of the family, the right of homestead cannot exist. And cannot the same person, at one time, be the head of a family, and not at another ? And if the privilege is an incident to a certain state, and that state itself ceases, why should not the incident fall with it ? As the primary object of the law was the protection of the family, when the family ceases to exist the reason for the privilege is gone; and why should not the privilege itself also cease ? As the end con[73]*73templated by the law can no longer be attained, why should the means be preserved when they are no more wanted ? As the law will not allow an individual the right of homestead before he becomes the head of a family, why should it allow him this right after he ceases to be such ? The very reason why the law will not allow it in the one case, is equally applicable in the other. When an individual has not been, or has ceased to be, the head of a family, the law cannot anticipate that he will thereafter become such, in either case. When he does, in fact, become the head of a family, then the law protects him for their benefit. He is the representative of the family. But when there is no family to protect, will the law defeat the just claims of creditors for the purpose of accomplishing no beneficial end ? It is true the party once had a family, and he also once had protection for that family; but since the family has ceased to exist, the protection is not needed. The law intended to protect individuals Avhile bearing certain relations towards each other. When that relation ceases, the cause of the protection is gone. The reason ceasing, the rule ceases. The privilege and responsibility must go together. One is rightful^ dependent upon the other. When the individual has no longer the cares of a family, the law should not still protect him as if he had; he should only be protected as others are, who are at present in the same state. The law does not look to his past, or future, but to his present, condition.
In the case of Taylor v. Hargous, 4 Cal. Rep., 273, the learned Judge who delivered the opinion of the Court, expressed the opinion that the right of the husband and wife to the homestead was a “ sort of joint-tenancy, with the right of survivorship, at least as between husband and wife.” This is, no doubt, true, as a general proposition; but still the parties do not stand precisely equal in every respect. Our statute and the Constitution have made some difference between them in reference to some particular.
While the husband lives, he is considered the head of the family ; and upon his death, the widow takes that capacity, and all the incidents, privileges, and responsibilities, attached to it. Wood v. Wheeler, 7 Texas Rep., 13. But when the wife dies, the surviving husband takes upon himself no new capacity, but continues as he was before, the head of the family. It is true, that now"he can alienate or incumber the homestead by his single deed. But Avhen the wife survives, and there are legitimate children of the deceased husband, the homestead is directed to be set apart for her and the children. In such case, could she afterward alone sell or incumber the homestead? It is at least doubtful. If there be no surviving wife or children, then the homestead goes to the next heirs of the husband. (§ 10.) There is no such provision where the wife dies, and the husband survives.
[74]*74Upon the death of the husband the homestead descends, exempt from his debts, by a special provision of the statute. Had it been the intention of the Legislature to have given the surviving husband the same exemption, whether he has or has not any family left, then this provision would not have been specially confined to the case mentioned, but would have been general, so as to embrace all. It is true the homestead may continue exempt from sale after the death of the wife, for the reason that the surviving husband may continue the head of a family. The protection is given to that capacity, and as that capacity continues, the protection does not cease.
If these views be correct, upon the death of Mrs. Revalk the surviving husband ceased to be the head of a family, and the protection of the former homestead also ceased.
We will now proceed to consider the question as to the manner in which the property would be liable to the debts of the surviving husband. In the case of Taylor v. Hargous, already referred to, it was said, “ the conveyance by the husband alone, is declared by the statute to be void.” In the case of Sargent v. Wilson and others, 5 Cal. Rep., 504, it was held that the deed in such a case, was not “ absolutely void, but only as to the homestead value.” See also Morse v. McCarty, July, 1856; and Poole v. Gerrard, January, 1856.
From these decisions it follows, that the mortgage is void only as to the homestead value. The mortgage being void as to the homestead value, it can never be rendered valid by any subsequent event. But while the mortgage itself is void, and but an incident to the debt, the debt remains good, and the property will be liable for the debt in the same way as if the mortgage never had been executed. In other words, the mortgagee stands upon equal footing with other creditors, neither in a better or worse condition on account of the mortgage.
Judgment affirmed.