Cary v. Tice , 6 Cal. 625 ( 1856 )

The opinion of the Court was delivered by Mr. Chief Justice Murray.

Mr. Justice Heydenfeldt and Mr. Justice Terry concurred.

The evidence in this case shows, that Tice, being a married man, came to California in 1849 ; that he purchased a piece of property and resided on it; that in 1854 he mortgaged the same to the plaintiff, and that his wife came to the country after said mortgage was executed, and resided on the premises with her husband up to the time of bringing this suit. It further appears, that about the time of the execution of the mortgage she was on her way to join her husband in California.

This statement is sufficient upon its face to determine the rights of the parties. The premises never were impressed with the character of a homestead, until actual residence upon them by the family. If it were otherwise, every house in the State, in which, the owner being a married man, had slept a single night, would be prima facie a homestead, and there would be no end to the fraud and injustice that would result.

Upon the point that the Legislature can direct in what manner this species of property may be sold, or the tenancy destroyed, we have no doubt. The Constitution is inoperative of itself, and looks to legislation; and in acting upon this subject it was a matter entirely within the discretion of the Legislature to determine how far, and in what manner, the homestead should be protected from forced sale.

Judgment affirmed.