after stating the facts, delivered the opinion of the Court—Murray, C. J., concurring.
The only point in this case is, whether the plaintiff can urge the same objections against the mortgage to McFarland and Downey as would be good, if urged by Abila and wife. In other words, is the mortgagee of Abila and wife in a worse condition than they are ? It is contended by the learned counsel for defendants, that the right of homestead is a personal privilege, which can only be asserted by the individuals to whom it appertains, and that the power to assert it cannot be transferred or conveyed to another.
The decisions of this Court in the different cases brought up before us, would seem to have settled principles, by the legitimate application of which, this case can be determined. The facts and circumstances of this case, it is true, differ from those of any preceding case.
In the case of Clark et al. v McChristian, 4 Cal., 23, this Court held that the “ homestead” was the dwelling-place of the family; that the residence of the family upon the premises would raise the prima facie presumption, that they were held as the “ homestead,” and would be notice to all the world. In the case of Taylor v. Hargous," this decision is affirmed, and it was held, in the latter case, that the removal of the husband and wife, after a sale by the husband in which the wife did not join, was not an abandonment of the right of homestead, and no evidence of such, abandonment. In this same case, it was held, that the estate in the homestead was “a sort of joint-tenancy, with the right of survivorship, at least as between the husband añd wife, and this *346estate cannot be altered or destroyed, except by the concurrence of both in the manner provided by law.” 4 Cal., 273, Morse v. McCarty, July T., 1856.
In the case of Poole v. Gerrard, January T., 1856, 6 Cal., 71, it was decided that separate deeds, executed by husband and wife, were invalid, and that a joint deed of husband and wife was required. In the case of Sargeant v. Wilson et al., 5 Cal., 506, it was held, that a sale of the homestead by the husband alone, is not absolutely void, but only void as to the homestead value.
It is clear from these decisions, that the mortgage of Abila to McFarland and Downey was void as to the homestead value, and that if the premises were worth not exeeeding five thousand dollars, they took nothing. It is equally clear, that the husband and wife had the right to sell in the proper mode. The statute does not intend to trammel the alienation of the homestead, except so far as to require the free assent of the two proprietors, in the mode prescribed.
If, therefore, the position of defendants be correct, then the wrongful act of the husband in executing the first mortgage, would, practically, prevent the husband and wife from executing any subsequent mortgage or alienation, until, by a suit, they had set aside the first mortgage. For, if Dorsey could gain no right to set aside the first mortgage, then it would have been worse than idle for him to have taken the mortgages to himself. And a purchaser would have been in the same condition. The legitimate result of such a rule would be to allow to the husband alone the power to obstruct, in advance, the free exercise of the right of alienation belonging to both husband and wife. This would be inconsistent with the rights incident to the ownership of property.
It has been justly settled, in cases of fraudulent sales of real estate, that if the title once vests in an innocent purchaser, any one can afterwards purchase of him with full knowledge of the original fraud; otherwise, the innocent purchaser could not enjoy the full right of alienation, and his property would be consequently diminished in value. The same principle applies in this case. The act of the husband being void, did not impair the right to sell the homestead with the same effect as if the mortgage had never been executed. And the fact, that Dorsey knew of its existence at the time his mortgages were executed, did not affect his right in the least. He knew the title was still in Abila and wife, and that the mortgage to McFarland and Downey was void. The rights of Dorsey, under his mortgages, being established, his right to set aside the judgment of foreclosure upon the mortgage to McFarland and Downey, is not denied. The judgment was a cloud upon the title, and would impair the value of the security.
Judgment affirmed.