Duncan v. Curry , 124 Cal. 106 ( 1899 )

McFARLAND, J.

This is an action to foreclose a mortgage executed by the defendants F. M. Curry and his wife, A. V. Curry. Judgment was rendered in the court below foreclosing the mortgage as against both defendants; and the defendants appeal from the judgment, and particularly from that part of it which decrees that the Ren of the mortgage is paramount to a certain homestead right set up in the answer.

On the twenty-fourth day of November, 1894, the appellants, husband and. wife, executed the mortgage in question, which, however, was never recorded. On December 14, 1895, the appellant A. V. Curry, the wife, duly executed a declaration of homestead upon the mortgaged premises, which was on said day duly recorded; and it was contended by appellants that this declaration of homestead defeats the mortgage lien. It is true that the homestead is exempt from forced sale except in the instances enumerated in the four subdivisions of section 1241 of the Civil Code. But subdivision 3 of that section is as follows: “On debts secured by mortgages -on the premises, executed and acknowledged by the husband and wife, or by an unmarried claimant”; and, of course, the case at bar is clearly within the terms of that subdivision. It is contended by appellants that the case is governed by subdivision 4 of this section, which is as follows: “On debts secured by mortgages on the premises, executed and recorded before the declaration of homestead was filed for record.” It is quite evident, however, that subdivision 4 relates to mortgages not embraced in subdivision 3. There is clearly room for such a construction of the two subdivisions as will allow both to stand. Subdivision 3 relates to mortgages executed by both husband and wife; and its provisions as to that class of mortgages are positive and beyond doubt. Subdivision 4 applies to mortgages—and of course there are many such—which are not executed by both husband and wife. The two subdivisions, considered together, clearly mean that a mortgage not recorded before the declaration of homestead is filed cannot be enforced as against the homestead, unless it had been executed by both husband and wife. The cases of Ontario Bank v. Gerry, 91 Cal. 94, First Nat. Bank v. Bruce, 94 Cal. 77, and Lee v. Murphy, 119 Cal. 364, cited by appellant, are not in point. In all of these cases a mortgage had been executed by the husband alone, and the wife had not executed any instrument or performed any act which had in any way compromised her homestead right. In neither of them, nor in any case decided by this court to which we have been referred, is there any reference to or discussion of subdivision 3. In Downing v. LeDu, 82 Cal. 471, the action, and the facts, were substantially like those in the case at bar. There, as here, the mortgage was executed by both husband and wife, and the wife claimed that her homestead was paramount to the mortgage because the latter had not been recorded. Judgment in the court below was for plaintiff and against both defendants, and the judgment was here affirmed, although the justice who wrote the opinion in that case made no allusion to subdivision 3. But the reasons there given for affirming the judgment were undoubtedly those which moved the legislature when enacting subdivisions 3 and 4 of said section 1241.

• For these reasons we think that the court below properly decided the case.

The judgment appealed from is affirmed.

Temple, J. and Henshaw, J., concurred.