Rix v. McHenry

Where the husband bought certain land, during the absence of his wife from the State, and mortgaged it, and subsequently his wife returned, and resided on it: Held, that it could not be claimed as a homestead against the mortgagee. An order of a District Court, setting aside the homestead, operates as a protection against other creditors. Where the estate of an insolvent is subject to liens, or mortgages created before the application in insolvency, proceedings therein do not affect such liens or mortgages, and the right of the assignees is confined to the surplus. The provisions of the fourteenth section of the Insolvent Act, providing that all suits brought against the insolvent debtor anterior to his surrender of property, shall be transferred to the Court in which said insolvent shall have presented his schedule, does not apply to suits brought for the enforcement of prior liens or mortgages. The phrase, “resident of this State,” used in the second section of the Homestead Act, means an actual and not a constructive presence.

Appeal from the District Court of the Twelfth Judicial District, in the County of San Francisco. This was an action for the foreclosure of a mortgage upon certain premises, executed and delivered by Jesse McHenry to the plaintiff, Rix. McHenry, in his defence, set up, that after the execution of the moi’tgage, he applied for the benefit of the insolvent law in the Fourth Judicial District, and that a portion of the mortgaged premises had been set aside by the decree of that Court as his homestead. His wife also filed a petition of intervention, setting forth that she never signed the mortgage, and praying that a part of the premises be set aside to her as a homestead. It appears that defendant McHenry, and his wife, came to this State in 1851, and his wife left this State in March, 1852, on a visit to New Orleans, and returned in June, 1854. During her absence, said defendant purchased the property described in the complaint, and improved a portion of it, with the intention of making such portion his homestead. In September and November, 1853, and in May, 1854, defendant McHenry executed different mortgages upon said premises. The mortgage of plaintiff was executed in May, 1854. Upon the note and mortgage he brought suit in the Twelfth District Court, on the second of June, 1855, making the other two mortgagees parties defendant. On the eighth day of June, the defendant McHenry filed his petition in the Fourth District Court, for a discharge under the act of May 4th, 1852, for the relief of insolvent debtors, and praying the Court to set aside that portion of the mortgaged premises occupied by him and wife as a homestead. On the twenty-first of December, 1855, he filed his answer to the plaintiff’s complaint, in which he set up the proceedings in insolvency, and prayed that the case in the Twelfth District Court, might be certified to the Fourth District Court for further proceedings, and also prayed that a certain portion of the premises be set apart for a homestead. The Twelfth District Court proceeded to final judgment, and McHenry and wife excepted, and appealed to this Court.