Beck v. Soward , 1888 Cal. LEXIS 926 ( 1888 )

Searls, C. J.

This is an action to quiet title, brought by plaintiffs, the heirs of Millie C. Soward, deceased, against Bichard Soward, her husband.

The land in dispute was the separate property of Millie Soward, deceased. Defendant claims under the declaration of homestead set forth in the findings.

It is claimed by plaintiffs and respondents that the declaration of homestead upon the separate property of the wife was invalid upon the grounds: —

1. That it was not properly acknowledged by the wife;

2. That it did not show declarant was the head of a family;

3. That it did not show the estimated value of the property.

The homestead declaration was executed in November, 1880, and recorded December 10, 1880.

Section 1239 of the Civil Code provides that “the homestead cannot be selected from the separate property of the wife without her consent, shown by her making, or joining in making, the declaration of homestead.”

It follows that the wife was a necessary party to the declaration of homestead upon this, her separate property.

' The declaration must be executed and acknowledged in the same manner as a grant of real property is acknowledged. (Civ. Code, sec. 1262.)

“The acknowledgment of a married woman to an instrument purporting to be executed by her must not be taken unless she is made acquainted by the officer with the contents of the instrument on an examination without the hearing of her husband; nor certified unless She thereupon acknowledges to the officer that she executed the instrument, and that she does not wish to retract such execution.” (Civ. Code, sec. 1186.)

In the present case the acknowledgment of decedent is certified to as follows:—

“And I do hereby further certify that the said Millie C., wife of Richard Soward, is personally known to me to be the person whose name is subscribed to said instrument as a party thereto, and that she was by me first made acquainted with the contents thereof, and thereupon acknowledged to me, on examination separate and apart from and without the hearing of her husband, that she executed the same freely and voluntarily, for the uses and purposes therein mentioned, without fear or compulsion, or undue influence of her said husband, and that she did not wish to retract the execution of tho same.”

As will be seen, the certificate fails to show that the party was made acquainted with the contents of the instrument by the officer on an examination without the hearing of her husband, as required by section 1186 of the Civil Code.

The form used was such as was provided by the statute prior to the code, but since the adoption of that instrument a married woman, in acknowledging an instrument, must be made acquainted with and acknowledge the instrument without the hearing of her husband.

If she acknowledges the homestead declaration in the same manner as she is required to acknowledge a grant of real property, she must be made acquainted with its contents on an examination without the hearing of her husband, as provided in section 1186 of the Civil Code; and as that section provides that the acknowledgment of married women to an instrument must not be taken without this formula, we are of opinion there was no sufficient evidence of such an execution of the instrument by deceased as was requisite to its validity.

The reasons for requiring a homestead declaration made by a wife upon her separate property jointly with her husband to be explained to and acknowledged by her without the hearing of her husband are as all-prevailing as those which apply to the conveyance by her of her separate property.

The strongest reason, however, is to be found in the fact that the provision is statutory, and the statute not only requires it, but inhibits the taking of an acknowledgment by a married woman in any other way.

The case of Clements v. Stanton, 47 Cal. 60, in which it was held that the wife might acknowledge in the mode prescribed for law for the acknowledgment of conveyances of real property by persons other than married women, a declaration of homestead, selected by her alone, was one which originated prior to the adoption of the code, and when the inhibition contained in section 1186 did not exist.

We think the rule enunciated in Hutchinson v. Ainsworth, 63 Cal. 286, in case of an acknowledgment similar to the one here, is the true one, and applicable alike to all acknowledgments of instruments by married women.

We have discussed this question as though it were important to a determination of the case; the judgment of the court below must be affirmed for another reason.

The homestead was carved out of the separate property of the wife in December, 1880.

The wife died intestate February 16, 1887, leaving a husband and more than one'child.

By section 1265 of the Civil Code, the homestead not being community property, but having been selected from the property of the wife, upon her death descended to her heirs. That is to say, there being more than one child and a surviving husband, one third of it was succeeded to by the husband, and the remaining two thirds in equal shares to the children, etc., as provided- in section 1386 of the Civil Code.

This is precisely the result reached by the court below, and had the homestead been held valid, it would not have changed the order of succession.

The judgment is affirmed.

Pateeson, J., McKinstey, J., Thoenton, J., and Shaepstein, J., concurred.