Roth v. Insley

Beatty, C. J., concurring.

I concur in the judgment. The declaration of homestead in this case did not show that the claimant was the head of a family. It merely stated that he was, at the date of the declaration, actually residing on the premises with his mother, and altogether fails to state that she was under his care and maintenance, a condition made essential by the statute. (Civ. Code, sec. ,1261, subd. 2.) But it was a good declaration for any person other than the head of a family (Civ. Code, secs. 1266-1269), and sufficient to secure a homestead right of exemption to the extent of one thousand dollars. (Civ. Code, sec. 1260.) Such being the case, the homestead could not be sold under execution upon a judgment other than one of those enumerated in section 1241 of the Civil Code, without taking the steps prescribed in section 1245 et seq. For these reasons the injunction was proper. The question is not necessarily involved in this appeal, and cannot be decided here, but I think it ought not to be intimated that the homestead of the head of a family remains exempt in his hands to any greater extent than one thousand dollars, after he has ceased to be the head of a family.