Glas v. Glas

Haynes, C.

This action is prosecuted to foreclose a mortgage executed by the defendant to plaintiff.

The plaintiff had judgment, and this appeal is from the judgment and from an order denying defendant’s motion for a new trial.

After the execution of the note and mortgage, the defendant filed a declaration of homestead upon the mortgaged premises, and appellant’s principal contention is that the plaintiff, who is the wife of the defendant, cannot foreclose the mortgage because of the-declaration of homestead so filed by the husband.

1. This contention can be best stated in the pathetic-language of his brief: “ Can respondent, by aid of the judicial arm, invade the home and fireside, destroy the homestead and the sanctum of virtue and truth, in an action by her against her husband to foreclose a mortgage, when the husband has no other suitable place of abode? Can the homestead be abandoned in this manner? Will equity permit the wife to destroy the home provided for her by her husband, and destroy his means, of support and cast him out to the world in his dotage,, simply to satisfy her avariciousness, or a demand for her pound of flesh ? ”

Terrible as the consequences may appear to be, we are constrained to hold that the husband cannot defeat the mortgage as a lien, nor its foreclosure, by subsequently filing a declaration of homestead upon the mortgaged premises. Section 1241 of the Civil Code provides: “The homestead is subject to execution or forced sale in satisfaction of judgments obtained: . . . . 4. On debts secured by mortgages on the premises ex-* ecuted and recorded before the declaration of homestead was filed for record.” That the parties to the note and mortgage are husband and wife does not affect the rights of the plaintiff. Section 158 of the Civil Code provides': “ Either husband or wife may enter' into any engagement or transaction with the other, or with any other person respecting property, which either might if unmarried.”

Appellant’s contention would nullify the provisions of the foregoing section, and would enable the husband to •obtain his wife’s money upon the faith of the security given by the mortgage, and yet defeat the security thus given by his separate and independent act without her knowledge, consent, or concurrence.

2. The note secured by the mortgage was dated August 25, 1892, and made payable three years after date, and this action was commenced before the expiration of the time above stated. The note, however, contained a provision for annual payment of interest, and another provision “that if not so paid when it became due it should be added to the principal, and become a part thereof, and bear interest at the same rate as said principal sum.” The note, however, contained this further •stipulation: “But if default be made in the payment of interest as above prescribed, then this note shall immediately become due at the option of the holder thereof”; and the mortgage contained the provision “that in •case of default in payment of any installment of the interest, then the whole sum of interest and principal should be due at the option of the said party of the second part, or assigns, and suit may be immediately brought, etc.” This suit was brought eight months after the delinquent installment of interest became due, and it is contended by appellant that this delay in making demand and bringing the. action was a waiver of the •■■default in the payment of interest. This contention cannot be sustained. The cases cited by the appellant to this point do. not sustain his contention. In Campbell v. West, 86 Cal. 197, it was held that the plaintiff having failed to exercise the option upon the first default, he was not bound to waive its exercise at any subsequent default; and that was really the only question in the case, as the installment of interest upon which the plaintiff exercised his option fell due on Saturday, and on the following Monday the plaintiff notified the defendant of his option to consider the whole amount of principal and interest due. In the other case cited by appellant, namely, Hewitt v. Dean, 91 Cal. 5, 10, it was said: “Although the plaintiff might have dealt with the defendants in such a way that he would be estopped from asserting his right of option, or by some act of his waive such right, yet mere forbearance or inaction would not cause such waiver. His leniency toward the defendants by forbearing to make an election within a reasonable time could not impair his right, or be regarded by them as a waiver thereof.”

3. Upon the trial the mortgage, together with the indorsements thereon, showing the date of its filing for record, and the volume and page where it was recorded, was received in evidence over an objection made by counsel for defendant; and afterward, on a motion for nonsuit, one of the grounds specified was that plaintiff failed to prove that said mortgage had been recorded. This objection was not made at the time of the introduction of the mortgage in evidence, and it is now contended that the indorsement upon the back of the mortgage, that it was filed and recorded, though signed by the recorder, was not evidence in the absence of the seal of that officer. There is no statutory requirement that the certificate of the recorder of the receipt of the mortgage for record, and that it had been recorded, indorsed upon the original mortgage, should be attested by his seal. It is only certified copies that must be so attested.

Searls, C., and Belcher, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

Harrison, J., Garoutte, J., Van Fleet, J.