Van Reynegan v. Revalk

8 Cal. 75, 1857 Cal. LEXIS 295

Opinion

Burnett, J., after stating the facts, delivered the opinion of the Court—Murray, C. J., concurring.

The questions arising in this case have been decided by this Court in the cases of John Revalk and wife v. Kraemer et al., July, 1857, and of Dorsey v. McFarland and Downey, April, 1857.

The property being the homestead, the mortgage to Kraemer and Eisenhardt was void, and. could not be rendered valid by the subsequent death of the wife. The proceedings in the case of Kraemer and Eisenhardt, in the Twelfth District Court, did not bind either Revalk or his wife, as to their right of homestead. They had the right to mortgage or sell in the same way as if those proceedings had not been instituted. Pixley and Smith had a right to take their mortgage. .Their failure to record until after the death of Mrs. R., could, in no wise, impair their rights as against a void mortgage.

The- judgment of the Court below is reversed, and that Court will enter a decree for the plaintiff.