In my judgment the Act of 1860 has no bearing upon the rights of the parties. That Act was passed some five years after Casement conveyed to Thompson, under whom defendants claim, and their rights must therefore depend upon the Act of 3 851, and be governed by it. According to the decision in Gee v. Moore, 14 Cal. 474, the legal title to the premises is presumed to -have been in the husband in the first instance, or the common property of the spouse, and in cither alternative the husband’s deed to Thompson passed the title to the grantee, “ subject only to the use and occupation by the husband and wife until another homestead should be *535acquired, or until the character of the premises as a homestead should be otherwise lost.” The homestead was lost by the death of the husband, there being no legitimate children of the marriage. The homestead depends upon the family, not only for its origin, but for its continued existence, and the death of either husband or wife, there being no children, puts an end to the family relation by consequence. The fifteenth section of Article XI of the Constitution provides that “ the Legislature shall protect by law from forced sale a certain portion of the homestead and other property of all heads of families.” It was held in Revalk v. Kraemer, 8 Cal. 71, that “the leading idea upon which the Constitution and statute are both predicated, is the protection of the family. To carry out this intent, the homestead of the head of the family is protected from forced sale. Any individual of either sex may be the head of a family. It is not necessary that the head of the family should be a married person. But unless the person is the head of the family, the right of homestead cannot exist. And cannot the same person, at one time, be the head of a family, and not at another ? And if the privilege is an incident to a certain state, and that state itself ceases, why should not the incident fall with it? As the primary object of the law was the protection of the family, when the family ceases to exist the reason for the privilege is gone ; and why should not the privilege itself also cease ? As the end contemplated by the law can no longer be attained, why should the means be preserved when they are no more wanted? As the law will not allow an individual the right of homestead before he becomes the head of a family, why should it allow him the right after he ceases to be such ? The very reason why the law will not allow it in the one case is equally applicable in the other. When an individual has not been, or has ceased to be, the head of a family, the law cannot anticipate that he will thereafter become such in either case. When he does, in fact, become the head of a family, then the law protects him for their benefit. He is the representative of the family. But when there is no fiimily to pro*536tect, will the law defeat the just claims of creditors for the purpose of accomplishing no beneficial end ? It is true the party once had a family, and he also once had protection for that family; but since the family has ceased to exist, the protection is not needed. The law intended to protect individuals while bearing certain relations to each other. When that relation ceases, the cause of the protection is gone. The reason ceasing, the rule ceases. The privilege and responsibility must go together. One is rightfully dependent upon the other. ' When the individual has no longer the care of a family, the law should not still protect him as if he had; he should only be protected as others are who are at present' in the same state. The law does not look to his past or future, but to his present condition.” To show how completely the homestead right is made by the statute to depend upon the family relation, we have but to advert to the proviso to the tenth section. It is as follows: “ Provided that the exemption, as provided in this section, shall not extend to unmarried persons, except when they have charge of minor brothers, or sisters, or both, or brothers’ or sisters’ minor children, or a mother, or .unmarried sisters living in the house with them.” According to this, though a family may be organized out of diverse elements, still the homestead is made to dejrend upon the family, and is coeval with it.
The plaintiff cannot claim that the wife took the whole lot by survivorship on the ground of joint tenancy, for that relation never existed between the spouses prior to the conveyance to Thompson. Nor can it be claimed that the wife took the title under the eleventh section of the Act relating to husband and wife, for the reason that the husband in his lifetime had so conveyed it. Nor could she take any interest under the statute regulating descents, for the same reason.- Nor could she take under the tenth section of the Homestead Act of 1851. By one of the clauses of that section “the homestead and other property exempt from forced sale, upon the death of the head of the family, shall be set apart by the Probate Court for the benefit of the surviving wife and his own *537legitimate children ; and in case of no surviving wife, "or of his own legitimate children, for the next heirs at law.” Here are two predicaments contemplated: First—The death of the husband leaving a widow and legitimate children". In such case the homestead is to be set apart by the Probate Court for the joint benefit of the mother and children. Second—If the wife survives and there are no children, or if the children survive and the wife does not, then, there being no organized family, by the conditions the property is confounded with the mass of the estate and goes to the “ next heirs at law ” as such. They would take, if they took at all, by descent and subject, of course, to all the incidents connected with titles so acquired or claimed. Here the title of the husband, or of the spouses, was lost by the deed to Thompson, and in the face of that conveyance no title by heirship can be successfully asserted for that reason. But if that difficulty is not insuperable in itself, then it can be overcome only by the Probate Court setting the lot apart for the benefit of the heirs. But the Probate Court has neither interposed nor been asked to interpose in the matter. Non constat that the heirs desired to come between the property, and the creditors, or if there were no creditors, then between the property and the purchasers in good faith. That they did not desire it sufficiently appears from the fact that they have not done it.