Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Granted 33 Cal. 266 at 278.
Appeal from the District Court, Eleventh Judicial District, El Dorado County.
This was an action to foreclose a mortgage. The facts are stated in the findings of the District Court. The defendants had judgment in the Court below. The following were the findings of fact of the District Court, to wit:
" This cause having been submitted to the Court on the evidence, the Court makes the following findings:
" 1st. That on the 5th day of April, A. D. 1865, Henry Miller executed to plaintiff his promissory note for and to secure the payment of a loan payable one year after date, for the sum of two thousand dollars. That at the same time of the execution of the note, the said Miller and his wife, the defendant, Catharine Miller, made, executed, and delivered to plaintiff their mortgage deed to secure the payment of a loan, of the certain real estate described in the complaint. That the mortgage was properly acknowledged and executed in every respect.
" 2nd. That said note was due and payable at the time of the commencement of the action, and there was due to plaintiff the sum of two thousand and sixty dollars in American gold coin.
" 3d. That on the ___ day of ___, 1865, said Henry Miller died, and thereafter, on the ___ day of ___, 1865, the defendant, Hornblower, was duly appointed by the Probate Court of El Dorado County, administrator of the estate of said Henry Miller, and was administrator at the commencement of the action.
" 4th. That on the 22d day of April, 1861, the said Henry Miller made and executed a declaration of homestead upon the property described in the complaint. That said declaration was filed and recorded in the Recorder's office of El Dorado County on the same day. That at the time of making said declaration, the said Henry Miller and his wife, the defendant, Catharine Miller, were residing upon said property, and that said property has never at any time exceeded in value the sum of four thousand dollars.
" As conclusions of law the Court finds that the declaration of homestead being upon the property at the time the mortgage was executed, that said mortgage was not valid for any purpose, and that defendant, Catharine Miller, is entitled to judgment refusing a decree of foreclosure."
Judgment was rendered accordingly. The plaintiff appealed from the judgment roll, and made the following assignment of errors:
" The Court erred in finding that the declaration of homestead being upon the property at the time of the execution of the mortgage, that the mortgage did not become a lien on it. The Court erred in refusing the prayer of plaintiff for relief, in dismissing the bill, and in rendering judgment in favor of defendant, Miller."
COUNSEL:
The only questions involved in this case are: 1st. The construction of the second section of the Homestead Act. 2d. If the construction of the District Judge is correct, then as to the constitutionality of that section of the Act.
By the statute of 1860, page 311, the Homestead Act was very materially amended. The first section provided for a new manner of claiming homesteads by doing away with the uncertainty of oral testimony, and requiring a declaration to be filed in the recorder's office. The second section provided as follows: " Such exemption shall not extend to any mechanic's, laborer's, or vendor's lien, lawfully obtained, but no mortgage or alienation of any kind, made for the purpose of securing a loan orindebtedness upon the homestead property, shall be valid for any purpose whatsoever."
Under the Act of 1860, there can be no doubt that the Legislature intended to render null and void all mortgages executed as in this case. This object was attained only in the language above quoted, and in no other part of the Act. The Legislature of 1862 amended the second section, leaving out all that portion prohibiting the giving of a mortgage to secure a loan. In amending this section, (Statutes 1862, p. 519,) it is true that the Legislature did not express its intention as plainly as it could have been done; but, nevertheless, taken in connection with what the statute was, and the express language upon that point, which was left out by the amendment, there does not seem to be any ground upon which to base two opinions in regard to the validity of the mortgage in this case.
If, however, the Court should differ with us as to the construction of this section, the question then arises, is not the Act in violation of section one, Article one, of the Constitution. The first section of the Homestead Act vests the title, upon the filing of the declaration, jointly in the husband and wife. But, if they have no power to mortgage, then they cannot sell, and they must remain the owners of the property until the death of one vests the title in the other, or until the wife voluntarily abandons the property by filing the declaration of abandonment. This, certainly, cannot be considered otherwise than as a prohibition upon that free use and disposition of property which the Constitution guarantees to all.
S. & George E. Williams, for Appellant.
Blanchard & Irwin, for Respondents.
As the law stood under the Homestead Act of 1860, no sale, alienation, conveyance, or mortgage could be made of the homestead property, without first executing, acknowledging and recording a declaration of abandonment, except a mortgage to secure the purchase money, or an alienation to pay the purchase money. The effect of this was to compel parties desirous of selling their homestead to first incur the unnecessary expense and trouble of executing and recording an abandonment before they could make a legal sale of the property; and hence, for the purpose of obviating that difficulty, the Legislature of 1862 amended the second section of the Act of 1860, (Stats. 1862, p. 519; ) which amendment, although expressed in differentlanguage, still substantially retains the prohibitions of the statute of 1860 in regard to mortgages, and confining them to the purchase money.
The language of section two of the Act of 1862 is: " Such exemption shall not extend to any mechanic's, laborer's, or vendor's lien, lawfully obtained, nor to any mortgage or other lien lawfully taken or acquired to secure the purchase money for said homestead ." It proceeds to point out the manner in which not only such mortgage or lien, but all other alienations, sales, or conveyances of the homestead, shall be executed; and then, to remedy the Act of 1860, by providing that alienations, sales, conveyances, mortgages, and liens may be executed without first executing the declaration of abandonment; and this latter was the only particular in which the Legislature of 1862 intended to or did amend the second section of the Act of 1860, leaving in full force the prohibition upon mortgaging the homestead for any other purpose than for the purchase money, contained in the Act of 1860. And this, too, upon the principle of expressio unius est exclusio alterius, for the language of section one is, that " the homestead * * * shall not besubject to forced sale on execution or any final process from any Court for any debt or liability contracted," etc.
In section two it is expressed that " such exemption shall not extend to any mechanic's, laborer's, or vendor's lien lawfully obtained, nor to any mortgage or other lien lawfully taken or acquired to secure the purchase money for said homestead," which upon the principle above quoted excludes all other mortgages, or mortgages given to secure the payment of any other kind of indebtedness.
The Act is not in violation of the Constitution, but was enacted in strict compliance with the requirements of that instrument. Article two, section fifteen, of the Constitution, says: " The Legislature shall protect by law from forced sale a certain portion of the homestead and other property of all heads of families." A foreclosure sale is a forced sale under the meaning of the law, as much so as any sale under execution.
The object the Legislature framing the present homestead law had in view, was to secure to heads of families and their minor children the homestead property as an immunity, and which never should by the act or permission of thehusband and wife, or either of them, be sold by process of law. This beneficent intention would be wholly defeated if the husband and wife could mortgage it for the purpose of business or speculation, by which the homestead property might become frittered away and wholly lost to the family.
JUDGES: Rhodes, J. Mr. Justice Sawyer delivered a dissenting opinion.
OPINION
RHODES, Judge
By the Court, Rhodes, J., on rehearing:
The judgment rendered herein by this Court is modified as follows:
Judgment reversed and cause remanded with directions to enter judgment for the plaintiff upon the findings of fact, that the amount of the note be paid by the administrator ins the due course of administration, in " American gold and silver coin," and that the mortgaged premises be sold as prayed in the complaint.