Certain instru

against purchasers,

etc.

SECTION 1229. Power to revoke, when deemed executed.

1230. Same.

1231. Other provisions.

1227. Every instrument, other than a will, affectments void ing an estate in real property, including every charge upon real property, or upon its rents or profits, made with intent to defraud prior or subsequent purchasers thereof, or incumbrancers thereon, is void as against every purchaser or incumbrancer, for value, of the same property, or the rents or profits thereof.

Not void against purchaser having notice, unless fraud is mutual.

Power to revoke, when deemed

executed.

1228.

NOTE.-Smith vs. Morse, 2 Cal., p. 524. The law is well settled, that a conveyance made with intent to defraud creditors is void; though there may have been a full and valuable consideration paid therefor, the fraud taints and vitiates it.-Swinford vs. Rogers, 23 Cal., p. 236; 1 Story's Eq., Sec. 369. And it will not be allowed to stand, even as security for advances actually made.-Goodwin vs. Hammond, 13 Cal., p. 170. The same rule would seem applicable to conveyances made with intent to defraud purchasers, etc. Where the sale and conveyance of property is but one transaction, and the sale is fraudulent as to part of the property, the Court is justifiable in holding the whole transaction fraudulent and void.-Swinford vs. Rogers, 23 Cal., p. 236; McKenty vs. Gladwin, 10 Cal., p. 228; Seales vs. Scott, 13 Cal., p. 78.

No instrument is to be avoided under the last section, in favor of a subsequent purchaser or incumbrancer having notice thereof at the time his purchase was made, or his lien acquired, unless the person in whose favor the instrument was made was privy to the fraud intended.

NOTE.-Statutes 1850, p. 266, Sec. 2.

1229. Where a power to revoke or modify an instrument affecting the title to, or the enjoyment of, an estate in real property, is reserved to the grantor, or given to any other person, a subsequent grant of, or charge upon, the estate, by the person having the power of revocation, in favor of a purchaser or incumbrancer for value, operates as a revocation of the origi

nal instrument, to the extent of the power, in favor of such purchaser or incumbrancer.

NOTE.-Statutes 1850, p. 266, Sec. 4.

1230. Where a person having a power of revoca- Same. tion, within the provisions of the last section, is not entitled to execute it until after the time at which he makes such a grant or charge as is described in that section, the power is deemed to be executed as soon as he is entitled to execute it.

NOTE.-Statutes 1850, p. 266, Sec. 5.

provisions.

1231. Other provisions concerning unlawful trans- Other fers are contained in Part II, Division Fourth, of this Code, concerning the Special Relations of Debtor and Creditor.

TITLE V.

HOMESTEADS.

CHAPTER I. General Provisions.

II. Homestead of the Head of a Family.
III. Homestead of Other Persons.

CHAPTER I.

GENERAL PROVISIONS.

SECTION 1237. Homestead, of what it consists.

1238. From what it may be carved.

1239. From what not.

1240. Exempt from forced sale.

1241. Subject to, when.

1242. How conveyed or incumbered.

1243. How abandoned.

1244. Same.

1245. Proceedings on execution against homestead.

1246. Same.

SECTION 1247. Same.

1248. Same.

1249. Same.

1250. Same.

1251. Same.

1252. Same.

1253. Same.

1254. Same.

1255. Same.

Homestead, of what it consists.

аш

1237.

1256. Same.

1257. After sale, money equal to homestead exemption pro

tected.

1258. Compensation of appraisers.

1259. Costs.

1260. Who may select homestead, value of.

1261. Head of family defined.

The homestead consists of a quantity of land, on which the claimant resides, selected as in this Title provided.

NOTE.-Const., Art. XI, Sec. 15; Stats. 1851, p. 296, Sec. 1; 1860, p. 311, Sec. 1; Estate of Delaney, 37 Cal., p. 176; Cooke vs. McChristian, 4 Cal., p. 23; Taylor vs. Hargous, 4 Cal., p. 268; Holden vs. Pumey, 6 Cal., p. 234; Moss vs. Warner, 10 Cal., p. 296; Benedict vs. Bunnell, 7 Cal., p. 245; Mann vs. Rogers, 35 Cal., p. 316; Ackley vs. Chamberlain, 16 Cal., p. 181.

Both in the Constitution and in the statute the word "homestead" is used in its ordinary or popular sense; or, in other words, its legal sense is also its popular sense. It represents the dwelling house, at which the family resides, with the usual and customary appurtenances, including outbuildings of every kind necessary or convenient for family use, and lands used for the purposes thereof. If situated in the country, it may include a garden or farm. If situated in a city or town, it may include one or more lots, or one or more blocks. In either case it is unlimited by extent merely. It need not be in a compact body; on the contrary, it may be intersected by highways, streets, or alleys. Neither is it circumscribed by fences merely. In respect to quantity, by itself considered, it is unlimited, whether in town or country. In short, the only tests are use and value. The former is both abstract and statutory, the latter statutory only. Whatever is used, being either necessary or convenient, as a place of residence for the family, as contradistinguished from a place of business, constitutes the homestead, subject to the statutory limit

am

as to value. If, however, it is also used as a place of
business by the family, which frequently happens, it
may not therefore cease to be a homestead, if it would
be necessary or convenient for family use, independent
of the business. If what is actually used as a home-
stead is of greater value than five thousand dollars, the
excess is not homestead, under the law, though so in
fact. Further than this, in the way of general defini-
tion, it is difficult to go, if not impossible. Whatever
lies beyond must find its demonstration in the peculiar
facts of the case. The homestead for which the law
provides is not one in name merely, but one in fact.
The law is founded upon the idea that it is good for the
general welfare that every family should have a home,
a place to abide in, a castle, where it can find shelter
from financial disasters and protection against the pur-
suit of creditors, who have given credit with the full
knowledge that they cannot cross its threshold. But
it is not founded upon the idea that every family ought,
for the sake of the general good, to be allowed to hold
five thousand dollars worth of land free from the touch
of honest creditors, provided they reside upon and use
some portion of it as a homestead.-Gregg vs. Bost-
wick, 33 Cal., p. 228.

1238. It may be selected by the claimant from any land in the possession of the claimant, or of the husband of the claimant.

NOTE.-Stats. 1867-8, p. 116, Secs. 1, 3; Mann vs. Rogers, 35 Cal., p. 316. Under the Homestead Laws of this State in force prior to eighteen hundred and sixty-eight, it was held that a homestead could not be carved out of land held in joint tenancy, or by tenancy in common.-Wolfe vs. Fleischucker, 5 Cal., p. 244; Reynolds vs. Pixley, 6 Cal., p. 165; Elias vs. Verdugo, 27 id., p. 418; Seaton vs. Son, 32 Cal., p. 481. The statute of eighteen hundred and sixty-eight (Stats. 1867– 8, p. 116,) provided that homesteads might be carved out of land held in joint tenancy. In Spencer vs. Geissman, 37 Cal., p. 96, the Court held that the homestead right is impressed on the land to the extent of the interest of the claimant in it, and not on the title merely. Under Sec. 1238, subject to the limitation contained in Sec. 1239, the right of selection may be exercised from any land of which the claimant or her husband is possessed. The estate in the land out of which the homestead is carved may be the fee, or such an interest as mere naked possession gives, or any inter

From what carved.

it may be

From what not.

Exempt from forced sale.

am

mediate estate. The possession may be held by the claimant alone, or in common, or in joint tenancy, for possession of any character is sufficient. It is the "home" that is intended to be protected to the extent of the rights which the claimant or her husband has in it.

1239. The husband cannot select a homestead from the separate property of the wife.

NOTE.-The homestead may be selected by either party out of the community property or the separate property of the husband.-Gee vs. Moore, 14 Cal., p. 172; Revalk vs. Cramer, 8 Cal., p. 66; Guning vs. Doane, 22 Cal., p. 638; Riley vs. Pehl, 23 Cal., p. 74. But under the provisions of Sec. 1239 the wife alone can impress the homestead character upon her separate property.

1240. The homestead is exempt from execution or forced sale, except as in this Title provided.

NOTE.-The Constitution (Art. XI, Sec. 15) provides that: "The Legislature shall protect by law, from forced sale, a certain portion of the homestead and other property of all heads of families." Our homestead laws are enacted to give effect to this provision. A "forced sale" is not synonymous with a "sale on execution," etc. The latter may be, and often is, voluntary in every respect. When the owner consents to a sale under the execution or other legal process, the sale is not forced, but it is as voluntary, within the full import of the term, as it is when he directly effects the sale and executes the conveyance. Its quality, as being voluntary or forced, depends not upon the mode of its execution, but upon the presence or absence of the consent of the owner. If those terms were synonymous, the provision would have been that the homestead shall not be subject to sale under execution or other legal process. The meaning of a sale on execution or other final process is plain, and needs no interpretation, and the word "forced," unless it is to be rejected as insensible, must qualify the phrase with which it is connected. But there can be no question that enforced sale means a sale against the will of the owner. It is apparent that it was not the intent of the framers of the Constitution to prevent the owner or owners of the homestead property from voluntarily alienating, changing, or otherwise affecting it. The homestead was not forced upon him, but he was at