Porter v. Chapman , 65 Cal. 365 ( 1884 )

The Court.

The homestead regularly declared to be such was not abandoned by the removal of the husband Porter from the premises and residing with his family elsewhere in the State, or by his removal from the State to the Territory of Arizona with his family when employed to go there by Clark, and remaining in such employment since April, 1877, becoming a citizen of the Territory, voting in its elections, and offering himself as a candidate for office therein. It is found that when Porter and wife removed from their homestead, they did not intend to relinquish or abandon it, but intended to return thereto and make it their home, and that Mrs. Porter accompanied her husband to Arizona, because she believed it was her duty to do so, and with no intention to relinquish her residence in this State, understanding that her absence was only to be temporary, and during all the time she lived in the Territory she claimed to be a resident of California, to have her homestead in Suisun, and intended to return thereto and occupy it as a home.

The removal and residence above mentioned were not an abandonment. (See § 2, Act 1851, as amended in 1862; Stats. 1862, p. 519; and Civ. Code, §§ 1243, 1244.) Nor was it abandoned by the mortgage to Beeves by husband and wife, as security for money, and a reconveyance by Beeves to the husband, when the debt secured was paid Beeves by him. Under our law we know of no abandonment of the homestead except in the statutory mode. The homestead having once been regularly created out of a parcel of land, in accordance with the statute, the estate so created continues to exist until put an end to in the mode pointed out by the statute. The grounds of abandonment urged are not within those fixed and recognized by the statute. In our decisions in regard to homesteads, we are bound to follow the statutes on the subject. If hard cases should arise, a provision for avoiding them must be by an alteration of the law by the legislative department of the government. The courts are in this regard without power.

Judgment affirmed.