Los Angeles herald., 1891-11-24
A NEW POINT.
JUDGE VAN DYKE KENDERS.AN IN.
TEREsTING DECISION.
The Case Of G. A. Mentry VS.. Theodore
shaw-A> Question of Mortgaging a
Homestead After Marriage.

The case of G. A. Mentry agains
Theodore s. Shaw ct al, was decided by
Judge Van Dyke yesterday. The sui,
was brought to foreclose mortgage
on property purchased by Shaw before
his marriage, but upon which he placed
homestead.
After he was married the property
was mortgaged to one of his relatives
without the knowledge OF Mrs. Shaw
The couple did not get along very well
and some time ago Mrs. Shaw instituted
proceedings for divorce, and in her
complaint alleged that her husband was
devoted to the flowing bowl. She Sc
cured a decree of divorce in department.
four. While the case was pending, the
relative who held the mortgage brought
the foreclosure suit, and Messrs. Gould
& Stanford, Mrs. Shaw's attorneys,
fought the case and secured Judgment
for their client.
The opinion is as follows:
1t is objected on the part OF the de-
fendant, Mrs. Mary A. Shaw, that the
mortgage in suit is not valid to bind the
property covered by it inasmuch as at
the time of the execution of the mort
gage there was a homestead existing on
the same, aud the mortgage was not
executed and acknowledged by her, at
that time the wife of the defendant
Theodore S. Shaw. The declaration of
homestead was made by Theodore s.
Shaw before his marriage with the
defendant, Mary A. Shaw, but at the
time he had his mother residing with
him on the property selected and on
which the declaration of homestead in
question was filed. The homestead.
therefore. falls under subdivision 5 of
section 1881 of the Civil Code.
The evidence shows that the mother
continued to reside with Shaw from the
time OF the declaration of the home
stead until his marriage, but it is con-
tended on the part OF the plaintiff that
the homestead right thus acquired by
Shaw before his marriage did not inure
to the benefit of his wife after marriage,
and therefore it is not necessary for her
to sign the mortgage, but that the hus-
band alone could by executing the
mortgage work an abandonment of the
homestead.
In the case of Santa Cruz bank against
Cooper, Sc CAL, 339, the defendant,
Frank Cooper, a widower, filed decla-
ration of homestead, there being at the
time living with him mis- sister-in-law
and two minor children. AS the statute
then stood no unmarried man could Sc
lect or hold homestead unless he had
the care and maintenance of minor
child or of a minor brother or sister, or
the minor child of deceased brother or
sister, or a father or mother or a grand
father or grandmother, or of an unmar-
ried sister, then residing on the home.
stead property with such person. On
the 1st of March, 1870, both the minor
children of Cooper were of age, and no
other of the class mentioned were living
with him. He married the other de-
fendant in the case, Louisa S. Cooper,
in Juns, 1872, and in August, 1873, exc
cuted the mortgage then before the
court. The supreme court in that case
hold that when the minor children ar
rived at majority and defendant
Cooper, not having the csre and main
tenance of any OF the other persons
named in the statute, it followed he
ceased to hold the homestead which he
was allowed to acquire only because he
had the care and maintenance OF his
minor child. "The homestead right
that attached to the premises byvirtue
of the declaration filed by Frank Cooper
on the 9th of May, 1867, having ceased
to exist LONG prior to his marriage with
his present wife and there having been
no declaration Of homestead filed by
either after marriage, it results that the
joinder of the wife in the conveyance to
the plaintiff was not necessary, the
property being the separate property of
the husband" After the homestead is
created in the manner prescribed by the
code it continues until abandoned as
therein provided and does not terminate
when child arrives at age or mother
dies. The homestead right does not ter
inmate as it did under the law as it
stood in 1862, under which the cash OF
Santa Cruz bank against Cooper was
decided; consequently in Roth vs. In
sley, 36 Cal, 1874, it is held that home
stead set apart as in that case, under
sec. 1861 of the Civil Code or SON with
whom his mother resides does not cease
to be exempt from execution for debt
OF the son, because he has ceased
to be the head of family
owing to the death of his mother.
The premises in question were there
fore homestead at the time of Shaw's
marriage to Mrs. Shaw, and had not
been abandoned at the time of the exc
cution OF the mortgage in this suit.
Section 1912 of the Civil Code says:
"The homestead OF married person
cannot be conveyed or encountered un-
less the instrument by which it is con-
veyed or encumbered is executed and
acknowledged by both husband and
wife" There can be but one meaning
to the language used by the supreme
court in the case OF Santa Cruz Bank
against Cooper, and that is. if the home
sfead created hV Frank Cnnnar before