Reynolds v. Pixley , 6 Cal. 165 ( 1856 )

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

Mr. Justice Terry concurred.

The record in this case shows that the premises in question were formerly held by appellant as joint tenants, together with one Teed, and that the appellant lived on a portion of said lot with his family, until his residence was destroyed by fire. Afterwards he boarded with his family at a hotel in the city of Marysville. After the fire, the appellant and Teed divided said lot, and he (the appellant) proceeded to erect upon the half formerly occupied by him, a building, designed for stores and offices, and executed several mortgages upon the lot for materials and money to erect said building. Some time after the erection of the house, he and his wife occupied several of the rooms on the second story, and now seek to maintain a right of homestead in the premises.

In Davis and Wolf v. Fleishacker, 5 Cal., we decided, that lands held in joint tenancy were not subject to dedication for homestead purposes. Under that decision (the soundness of which we are not disposed to question) the appellant, though living upon the land, was not entitled to a homestead. After the partition of the lot between himself and co-tenants, it became his, subject to the general rules that govern the acquisition of real estate, and its character was not influenced or changed by relation to prior occupancy as a dwelling place; for that which the law would not tolerate in the first instance, could not be effected by the act of the party. As to the second building, it is shown that it was not even erected for a dwelling house, but for a different purpose, and that it was not occupied as a residence until after the liens and mortgages had accrued.

In Cook v. McChristian, 4 Cal., it was held that in the absence of statute regulations requiring recordation of homestead claims, residence was the test by which the fact of dedication was to be determined. Squaring this ease by that decision, there was no residence qualifying the possession up to the time of the destruction of the building by fire, and none afterwards until the claims now in suit had been contracted, and became a legal charge upon the property.

Before leaving this case, we feel constrained to express our regret that the Legislature has failed to provide that notice of homestead should in all cases be recorded. Such a law would do away with all the difficulties which now embarrass these rights, and be found a wise and salutary barrier against deceit and dishonesty. As the law now stands, so far from accomplishing the end designed, it is a fruitful source of fraud and perjury, and will eventually lead to more mischief then all the other difficulties which embarrass real property in this State. These rights are so illy defined, that it is almost impossible for human foresight to detect or guard against them; and much of the property of this State, which has passed through many hands, will eventually be found encumbered to its full value with these unrecorded liens.

Judgment affirmed.