Skip to content

Poole v. Gerrard

Poole v. Gerrard, 6 Cal. 71 (1856)

Court: California Supreme Court · State Highest Courts
Decided: July 1, 1856
Judges: Heydenfeldt
Citations: 6 Cal. 71

Cited by 13

Syllabus

To make valid sale of the homestead requires the joint deed of the husband and wife. Separate deeds of the husband and wife are both invalid. A wife cannot sue alone to recover the homestead; it is a joint estate, with right of survivorship, and both husband and wife must join in the action.

Summary

Appeal from the Superior Court of the City of San Francisco. The record shows that Hiram Poole, thg husband of the plaintiff, on the 15th Sept., 1853, conveyed the homestead to the defendant for §3,500, by a deed in which his wife did not join, though it was made with her knowledge. Poole the next day left the country. The plaintiff, who was residing on the property under the impression that she had no legal rights to the homestead, conveyed her claim thereto to the defendant for §200, by a deed executed and acknowledged as if she were a feme sole, Sept. 28th, 1853. On the 7th of February, 1855, plaintiff brought this action to recover possession of the homestead, and for rents, etc. The defendant, demurred on the ground that plaintiff's husband should have been joined with her. Plaintiff amended the complaint by entitling the cause “ Helen Poole by her next friend H. W. Woodward v. F. Gerrard.” The defendant again demurred upon the same ground; the demurrer was overruled and the defendant filed his answer, and the case was tried. The jury found a verdict for the defendant, under the instructions of the Court that the deed of the plaintiff conveyed all her right, title and interest in the property to the defendant. Judgment accordingly, motion for new trial denied, and plaintiff appealed.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Heydenfeldt

Text extracted by OCR from a scanned original; check the original for exact wording.

The opinion of the Court was delivered by Mr. Justice Heydenfeldt.

Mr. Justice Terry concurred.

The Court below erred in deciding that the deed of the plaintiff conveyed all her interest in the property. In Simpers & Crammer v. Sloan, (5 Cal. R.,) at the October Term, 1855, we held “ that a feme covert has no power to make a contract.”

*73 To make a valid sale of the homestead requires the joint deed of husband and wife. The husband must make the contract and the wife must assent to it by an examination separate and apart from her husband. This is the mode pointed out by the statute, and it must be strictly pursued. Cook v. McChristian, 4 Cal. R.

It seems therefore in this case, that both the deeds separately executed, of Poole and his wife, are invalid.

On the other hand, the wife has no right to sue alone. In Taylor v. Hargous, (4 Cal. R.,) we decided that the homestead was a joint estate in husband and wife, with the right of survivorship. It results from that decision that it is neither common property, which would enable the husband to sue alone, nor is it the separate estate of the wife, in which case only she would be enabled to sue alone.

She should have joined her husband in the action and he would not have been estopped by a void deed.

The Court therefore erred in overruling the demurrer.

The judgment below is right upon this ground, but to prevent any question of pre-adjudication in another suit, it is most proper here to reverse the judgment, and also the order overruling the demurrer, and remand the case with instructions to the Court below to sustain the demurrer.

Ordered accordingly.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 13 cases

View all citing references →

Relies on it most ⓘ

Gee v. Moore14 Cal. 472 (1859)
Hart v. Church58 P. 910 (Cal. 1899)
Whelan v. Adams1914 OK 504, 145 P. 1158
Hannon v. Southern Pac. R. R. Co.107 P. 335 (Cal. Ct. App. 1909)
Howell, Jewett & Co. v. McCrie36 Kan. 636 (1887)
Guiod v. Guiod14 Cal. 506 (1860)

Most recent

Wise v. Thomas188 P.2d 444 (Colo. 1947)
Dixon v. Russell70 P.2d 196 (Cal. 1937)
Fetterman v. Franklin1922 OK 331, 211 P. 403
Hughes v. Latour Creek Railroad166 P. 219 (Idaho 1917)
Whelan v. Adams1914 OK 504, 145 P. 1158
Perley v. Woodbury78 A. 1073 (N.H. 1911)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 0

No citations to other opinions in this database were found.