Sargent v. Wilson

5 Cal. 504

Opinion

Murray, C. J., delivered the opinion of the Court.

Heydenfeldt, J., concurred.

The Homestead Act, passed April 21, 1851, provides, “ That no mortgage sale or alienation of any kind whatever, of such property, shall be valid without the signature of the wife, acknowledged,” &c.

This does not render the mortgage absolutely void, but, only void as to the homestead value; the object of the statute being, simply, to reserve a certain amount to the family for its maintenance and support; any excess oyer-$5,000 being common or separate property, is subject to the control of the husband, and may be disposed of in any manner by him.

It would, be difficult to draw any distinction between the right to bind the overplus by mortgage or debts contracted in the ordinary course of business. The wife being a necessary party to a full adjustment of this controversy, should have been allowed to intervene. This right belongs to her by the statute of this State, as well as the universal practice of Courts of Equity.

The judgment is reversed, and the Court directed to permit the wife to intervene, and to proceed and try the question of homestead, and settle the rights of the parties.