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7 Cal. 89

Rix v. McHenry

California Supreme Court

Decided July 1, 1857

California Supreme Court · decided 1857-07-01

<p>Appeal from the District Court of the Twelfth Judicial District, in the County of San Francisco.</p> <p>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.</p> <p>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.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1857-07-01

How this case has been cited

Cited by 5 later decisions — most recently March 1932

5 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Burnett, J.,

¶1after stating the facts, delivered the opinion of the Court—Murray, C. J., concurring.

¶2As to the action of the Court below in refusing to set aside any portion of the mortgaged premises as a homestead, we think there was no error. The point was settled in the case of Cary v. Tice and Wife, decided at the last term of the Court. The phrase “resident of this State,” in the second section of the Homestead Act, means an actual and not a constructive presence.

¶3We think that there was no error in the action of the Twelfth. District Court after the commencement of the proceedings in insolvency. It is true, that under the provisions of the fourteenth section of the act, “ all suits brought against the insolvent debtor anterior to his surrender of property before the Courts of *92other counties, shall be transferred to the Court having jurisdiction in the county in which said insolvent shall have presented his schedule.” But this provision relates to suits other than those for the enforcement of liens or mortgages, as is shown by the proviso to the thirty-sixth section. In such cases the proceedings are not affected by the pendency of the case of insolvency, and should there remain a surplus after discharging the lien and costs, the assignees would be entitled to it.

¶4As to the position that the order of the Fourth District Court setting aside lot “ two” of the mortgaged premises as a homestead, precluded the plaintiff from his remedy upon the mortgage, we think it entirely untenable, upon every principle of law and justice. The only effect of this action of the Fourth District Court was a protection of the homestead against other creditors, while it did not touch the rights of the several mortgagees.

¶5The other points in the case it is unnecessary to decide.

¶6The judgment of the Court below is affirmed.

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