Johnston v. Bush

By the Court, Crockett, J.: The land in controversy was the common property of Baton and his first wife, and was occupied by them as a homestead until her death in 1859. The dedication of the land as a homestead under the Homestead Act of April 21, 1851, did not constitute the husband and wife joint tenants with a right of survivorship, nor change the nature of their prior estate in the land; and had no other effect than to exempt it from alienation, so long as the homestead claim was impressed upon it, except by the joint deed of the two spouses. (Gee v. Moore, 14 Cal. 474; Bowman v. Norton, 16 Id. 231; Himmelman v. Schmidt, 23 Id. 117; Brannan v. Wallace, 25 Id. 114; McQuade v. Whaley, 31 Id. 531.) In the case first cited the Court says: “ The power of alienation, and not the nature of the estate, is thus affected. * * If the premises are the separate property of the husband, or the common property of both husband and wife before they become a homestead, they remain such separate or common property afterwards.” It is clear, therefore, that if the homestead claim was terminated by the death of the wife, her interest in the property immediately vested in her children, who became tenants in common with their father, and were entitled to be let into possession with him. (Broad v. Broad, 40 Cal. 493; Broad v. Murray, 44 Id. 228.) On the other hand, if the homestead claim survived to the husband as the head of the family (a point we do not decide), nevertheless the children were not thereby deprived of the interest in the common property, which they had inherited from their mother, and which they held, subject only to the homestead claim of their father. When the claim was abandoned, or for any other reason ceased to exist, the right of the children became absolute, and entitled them to the immediate possession of their undivided interest in the property. If it be conceded, therefore, that Eaton, after the death of his wife, was entitled to occupy the land as a homestead, he held it as such, subject to the rights of his children as the owners of an undivided half of the property, and whose right to be let into the possession would become [202] absolute on the termination of the homestead claim. In 1865 Baton removed from these premises, and in 1867 conveyed them to the defendant by deed absolute. This was clearly an abandonment of the homestead, and the plaintiffs, who are the children of the deceased, Mrs. Eaton, became entitled to enter. We attach no importance to the fact that in 1861, after his second marriage, Eaton filed a declaration of homestead, including these premises, under the homestead Act of 1860. He could not deprive his children of their estate by an attempt to dedicate the property as a homestead for himself and his second wife under the new law, which establishes a sort of joint-tenancy in the homestead, with a right of survivorship, between the husband and wife. The counsel for the defendant contends that the effect of filing the declaration of homestead was, “ by a sort of relation or reflex action, to continue in being the original homestead right.” But we know of no principle of law by which a person can be deprived of Ms estate, already fully vested, by means of any species of “relation or reflex action.” Judgment and order reversed, and cause remanded for a new trial. Mr. Justice McKinstry did not express an opinion.