1. Before the declaration of homestead was filed for record, and which constitute liens upon the premises. 2. On debts secured by mechanics, contractors, subcontractors, artisans, architects, builders, laborers of every class, materialmen's or vendors' liens upon the premises. 3. On debts secured by mortgages on the premises, executed and acknowledged by husband and wife, or by an unmarried claimant. 4. On debts secured by mortgages on the premises, executed and recorded before the declaration of homestead was filed for record, En. March 21, 1872. Am'd. 1873-4, 229; 1880, 7; 1887, 81. 59, 618; Cal. Rep.Cit. 64, 78; 70, 188; 70, 559; 72, 485; 82, 229; 86, 141; 104, 34; 108, 220; 111, 486; 72, 484; 74, 360; 81, 649. 71, 480; 91, 97; 94, 121, 256; 124, 417; 125, Mortgage of: 1242. 119, 373; 124, 106; 124, 107; Subd. 2 Subd. 4 79; 109, 168; 114, 567; 119, 371; 83; 125, 325; 133, 413; 133, 414. See next section. How conveyed or incumbered. The homestead of a married person cannot be conveyed or incumbered, unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife. En. March 21, 1872. Cal.Rep. Cit. 78, 312; 81, 220; 81, 221; 82, 229; 99, 48; 100, 238; 102, 207; 108, 220; 113, 31; 113, 32; 117, 354; 120, 61; 125, 83; 126, 476; 130, 393. See sec. 1241, subds. 3, 4. Act enabling parties to alienate and incumber homesteads: See post, Appendix, title Homesteads. 1243. How abandoned. A homestead can be abandoned only by a declaration of abandonment, or a grant thereof, executed and acknowledged: 1. By the husband and wife, if the claimant is married; 2. By the claimant, if unmarried. En. March 21, 1872. Cal Rep.Cit. 58, 15; 65, 368; 68, 134; 71, 328; 74, 268; 78, 312; 81, 221; 82, 229; 93, 668; 93, 670; 94, 68; 98. 147; 100, 342; 106, 205; 113, 31; 117, 354; 121, 586. Subd. 1-121, 94; 130, 393. 1244. Same. A declaration of abandonment is effectual only from the time it is filed in the office in which the homestead was recorded. En. March 21, 1872. Cal Rep.Cit. 65, 368; 71, 328; 81, 221; 95, 405; 100, 342; 113, 31; 121, 94; 121, 586. § 1245. Proceedings on execution against homestead. When an execution for the enforcement of a judgment obtained in a case not within the classes enumerated in section 1241 is levied upon the homestead, the judgment creditor may apply to the superior court of the county in which the homestead is situated for the appointment of persons to appraise the value thereof. En. March 21, 1872. Am'd. 1880, 7. Cal.Rep.Cit. 59, 618; 59, 619; 62, 138; 75, 164; 79, 461; 79, 609; 82, 230; 86, 121; 86, 141. Value of homestead: See sec. 1263. 70, 559; 74, 268; 85, 74; 86, 120; § 1246. Same. The application must be made upon a verified petition, showing: 1. The fact that an execution has been levied upon the homestead; 2. The name of the claimant; 3. That the value of the homestead exceeds the amount of the homestead exemption. En. March 21, 1872. Cal.Rep.Cit. 79, 461. § 1247. Same. The petition must be filed with the clerk of the superior court. En. March 21, 1872. Am'd. 1880, 8. $ 1248. Same. A copy of the petition, with a notice of the time and place of hearing, must be served upon the claimant, at least two days before the hearing. En. March 21, 1872. § 1249. Same. At the hearing the judge may, upon proof of the service of a copy of the petition and notice, and of the facts stated in the petition, appoint three disinterested residents of the county to appraise the value of the homestead. En. March 21, 1872. Cal.Rep.Cit. 85, 74. § 1250. Same. The persons appointed, before entering upon the performance of their duties, must take an oath to faithfully perform the same. En. March 21, 1872. $ 1251. Same. They must view the premises and apthe value thereof, and if the appraised value ex ceeds the homestead exemption they must determine whether the land claimed can be divided without material injury. En. March 21, 1872. Cal.Rep.Cit. 79, 610. 1252. Same. Within fifteen days after their appointment they must make to the judge a report in writing, which report must show the appraised value and their determination upon the matter of a division of the land claimed. En. March 21, 1872. § 1253. Same. If, from the report, it appears to the judge that the land claimed can be divided without material injury, he must, by an order, direct the appraisers to set off to the claimant so much of the land, including the residence, as will amount in value to the homestead exemption, and the execution may be enforced against the remainder of the land. En. March 21, 1872. Cal.Rep.Cit. 52, 630; 75, 165; 79, 610. § 1254. Same. If, from the report, it appears to the judge that the land claimed exceeds in value the amount of the homestead exemption, and that it cannot be divided, he must make an order directing its sale under the execution. En. March 21, 1872. Cal.Rep.Cit. 79, 461. $1255. Same. At such sale no bid must be received, unless it exceeds the amount of the homestead exemption. En. March 21, 1872. 1256. Same. If the sale is made, the proceeds thereof, to the amount of the homestead exemption, must be paid to the claimant, and the balance applied to the satisfaction of the execution. En. March 21, 1872. Cal.Rep.Cit. 85, 74. § 1257. After sale, money equal to homestead exemption protected. The money paid to the claimant is entitled, for the period of six months thereafter, to the same protection against legal process and the voluntary disposition of the husband which the law gives to the homestead. En. March 21, 1872. Am'd. 1873-4, 230. 1258. Compensation of appraisers. The court must fix the compensation of the appraisers, not to exceed five dollars per day each for the time actually engaged. En. March 21, 1872. 1259. Costs. The execution creditor must pay the costs of these proceedings in the first instance; but in the cases provided for in sections 1253 and 1254 the amount so paid must be added as costs on execution, and collected accordingly. En. March 21, 1872. Cal. Rep.Cit. 62, 138; 82, 230. § 1260. Who may select homestead, value of. Homesteads may be selected and claimed: 1. Of not exceeding five thousand dollars in value by any head of a family; 2. Of not exceeding one thousand dollars in value by any other person. En. March 21, 1872. Cal.Rep.Cit. 62, 135; 62, 136; 62, 137; 62, 138; 76, 644; 85, 74; 86, 141; 108, 219;.121, 585; 126, 528. Estimate of value: Place of recording: See sec. 1263, infra. See sec. 1264, infra. § 1261. Head of family defined. The phrase "head of a family," as used in this title, includes within its meaning: 1. The husband, when the claimant is a married person. 2. Every person who has residing on the premises with him or her, and under his or her care and maintenance, either: (1) his or her minor child, or minor grandchild, or the minor child of his or her deceased wife or husband; (2) a minor brother or sister, or the minor child of a deceased brother or sister. 3. A father, mother, grandfather, or grandmother. 4. The father, mother, grandfather, or grandmother of a deceased husband or wife. 5. An unmarried sister, or any other of the relatives mentioned in this section, who have attained the age of majority, and are unable to take care of or support themselves. En. March 21, 1872. Am'd. 1873-4, 230; 1893, 123. Cal Rep. Cit. 108, 219. Subd. 286, 141. Subd. 386, 138. Subd. 6-118, 301; 121, 585. CHAPTER II. HOMESTEAD OF THE HEAD OF A FAMILY. § 1262. § 1263. Mode of selection. § 1264. § 1265. Declaration of homestead. Declaration must be recorded. Tenure by which homestead is held. § 1262. Mode of selection. In order to select a homestead, the husband or other head of a family, or in case the husband has not made such selection, the, wife must execute and acknowledge, in the same manner as a grant of real property is acknowledged, a declaration of homestead, and file the same for record. En. March 21, 1872. Am'd. 1873-4, 230. Cal. Rep.Cit. 76, 644; 126, 528. 62, 135; 62, 137; 62, 138; 66, 458; 76, 529; 79, 205; 98, 148; 108, 219; 110, 203; 121, 585; Declaration of homestead: Selection by wife: Place of recording: § 1263. See next section. See ante, secs. 1238, 1239. See sec. 1264, infra. Declaration of homestead. The declaration of homestead must contain: 1. A statement, showing that the person making it is the head of a family; or, when the declaration is made by the wife, showing that her husband has not made such declaration, and that she therefore makes the declaration for their joint benefit. 2. A statement that the person making it is residing on the premises, and claims them as a homestead. 3. A description of the premises. 4. An estimate of their actual cash value. En. March 21, 1872. Am'd, 1873-4, 231. 1264. Declaration must be recorded. The declaration must be recorded in the office of the recorder of the county in which the land is situated. En. March 21, 1872. Cal.Rep.Cit. 98, 148; 110, 203. Duty of recorder: See Pol. Code, sec. 4235. |