
    [No. 2551.
    Decided August 2, 1897.]
    A. C. Anderson et al., as Executors, Appellants, v. John Stadlmann et al., Respondents.
    
    HOMESTEAD — HOW ACQUIRED — MORTGAGE BY HUSBAND — RIGHTS OF WIFE — ABANDONMENT.
    The mere occupancy of a dwelling-house as a residence and homestead Constitutes a selection as a homestead, under Code Proc., § 481, and affords notice to subsequent purchasers or in-J cumbrancers, of the right to assert the exemption, even by the wife in the separate property of the husband.
    A mortgage by the husband alone of his separate property in which the wife has a right to claim a homestead exemption, is void as to her, under Code Proc., § 483, providing that no mortgage of the homestead shall be valid against the wife, unless she shall join therein.
    A failure to select a homestead in the manner designated by Laws 1895, p. 109, does not establish an abandonment of the homestead, as under Code Proc., § 481, the selection may be made at any time before sale.
    Appeal from Superior Court, King County. — Hon. J. ~W. Langley, Judge.
    Affirmed.
    
      White, Munday & Fulton, for appellants.
    
      John L. Neagle, and Frank B. Wiestling, for respondents.
   The opinion of the court was delivered hy

Reavis, J.

On May 3, 1892, John Stadlmann, defendant, executed his promissory note in the sum of $1,300, payable in one year to the order of Osborne, deceased, and to secure the payment thereof executed and delivered a mortgage upon certain premises in the city of Seattle. In October, 1876, Stadlmann acquired this property hy purchase. He was then an unmarried man; in October, 1880, he was married to the intervenor and respondent Emma Stadlmann, and they jointly took np their residence on the premises thereafter mortgaged, and have continuously resided thereon; and with two children who had been born to them were residing thereon on May 3, 1892, when the mortgage was executed by the defendant John Stadlmann, his wife Emma Stadlmann not joining in the execution of the instrument. In September, 1892, the intervenor, Emma Stadlmann, was adjudged insane by the superior court of King county, and committed to the asylum at Steilacoom, where she has since been confined. In September, 1893, the defendant John Stadlmann was, upon his own petition, appointed general guardian of the estate of his wife Emma Stadlmann. The executors of the will of James Osborne, deceased, commenced this action for judgment upon the note and to foreclose the mortgage against the premises occupied by Stadlmann and wife and children.

To the complaint in foreclosure the intervenor and respondent, Emma Stadlmann, appeared by'her guardian and by leave of court filed a complaint in intervention setting out the facts substantially as above stated, and praying that the premises described in the mortgage be adjudged and decreed the homestead of the defendant John Stadlmann and his family; and that the same be declared exempt from forced sale under execution to satisfy the note for which the mortgage was given as security.

Ko exceptions are taken by appellants to the findings of fact. The court found that John Stadlmann for himself, he being the head of the family, both neglects and refuses to claim said' above described premises as the homestead exemption of himself and family as exempt from sale under execution to satisfy the note and mortgage. The superior court concluded that the plaintiffs were entitled to a judgment against the defendant John Stadlmann for the amount evidenced by the promissory note, and that the mortgaged premises prior to and at the time of the execution and delivery of the mortgage constituted and ever since have constituted and do now constitute the homestead of the defendant and his wife and children; that the mortgage thereon is void as against Emma Stadlmann, the wife, and that the described mortgaged premises are exempt from sale under foreclosure to satisfy the note; and decreed a homestead exemption and costs in favor of intervenor and respondent, Emma Stadlmann.

1. It is maintained by counsel for appellants that the premises, as separate property of the husband, could not be selected by the wife as a homestead, under § 1404, vol. 1, Hill’s Code. But this section provides that only one homestead shall be selected or held for the family and it must embrace the dwelling house in which one or both of them reside. Appellants also maintain that when the defendant Stadlmann and wife fixed their residence upon the mortgaged premises, the act of November 8, 1877, was in force (Laws 1877, p. 72, § 346), providing that to entitle a person to the benefit of the homestead exemption he or she shall cause the word “ homestead ” to be entered of record in the margin of his recorded title to the same, and the date of such entry. Such entry was not made in this case; but the foregoing act of 1877 was repealed in 1881. Since 1881 § 481, vol. 2, Hill’s Code, has been the law and provides such homestead may be selected at any tune before sale.

This court has held in Wiss v. Stewart, 16 Wash. 376 (47 Pac. 736), that the act of March 13, 1895 (Laws 1895, p. 109), does not affect the provision in relation to the time of making the selection of a homestead, but simply undertakes to direct the manner of such selection, and the provision that such homestead may be selected at any time before sale is still in effect. Under tbe law of 1881, wbicb was in force when the mortgage in controversy was execnted by defendant John Stadlmann, tbe only evidence of tbe homestead exemption in tbis state was occnpancy by the family of tbe premises and dwelling tbereon. In tbe case at bar, John Stadlmann established bis residence tbereon with bis wife, tbe intervenor, and they bad lived tbereon for many years, and were residing there when tbe mortgage was execnted. Tbe wife conld not make selection of any other dwelling, because it required tbe occupancy of tbe family to impress upon it tbe homestead character, and there could, be but one homestead appropriated by tbe family.

Tbis court said in Philbrick v. Andrews, 8 Wash. 7 (35 Pac. 358):

It is necessary that tbe homestead should be occupied as such, and tbis is probably tbe only way by wbicb it can be selected under our present laws; certainly it is tbe most effectual way, 'and the defendant, with bis family, was so occupying tbe land in question during all of said times, and appellant was bound to take notice of such occupancy when be purchased; in fact, be bad actual notice.”

So in tbe present case at tbe time of tbe execution of tbe mortgage tbe mortgagee bad actual notice of tbe residence of tbe defendant Stadlmann and bis family upon tbe premises.

Section 482, vol. 2, Hill’s Code, provides:

“"When any'person dies seised of a homestead, leaving a widow or husband or minor children, tbe survivors shall be entitled to tbe homestead.”

We think tbe homestead was impressed upon the mortgaged premises by tbe actual and continued residence tbereon of tbe defendant Stadlmann and family. Section 483, vol. 2, Hill’s Code, provides:

“ Nothing herein shall he construed to prevent the owner of a homestead from voluntarily mortgaging the same. But no mortgage shall he valid against the wife of the mortgagor, unless she shall sign and acknowledge the same.”

The policy of the homestead exemption in this state is well understood, and while counsel for appellants contend there is a distinction between the statutes of California, Michigan and "Wisconsin, particularly referred to by respondent, and the statutes of this state, we conclude that the object in each of them is the same. The purpose of the homestead exemption is to secure a shelter and home for the wife and family, and the policy of the law will permit an abandonment of such home only in the manner strictly pointed out by the statute.

Thompson on Homesteads and Exemptions, § 474, says:

Where the statute provides that, in order to make a valid conveyance of the homestead, the wife of the owner must join in the deed, a conveyance of the homestead by the husband alone is held by most courts to be void, not only as to the wife, but also as to the husband.”

But it is urged by appellants that the failure of the defendants to select the homestead in the manner designated by the act of March 13, 1895, supra, must be treated as an abandonment of the homestead. If this were true, a conclusive answer to the contention would be that the intervenor has been insane since the law went into effect, and that in any view she could at any time before the sale make such formal selection in conjunction with her husband; but if the husband now declines to claim such homestead, the mortgaged premises having once been impressed with that character by him, the wife would, perhaps, so long as such residence continues, have the right to protect the homestead when she had stated such refusal on the part of her husband. At any rate, the wife, who did not join in the execution of the mortgage, now-in a formal manner in court asks that the homestead be released from the force and effect of awoid mortgage.

' As suggested heretofore, there is no substantial difference to be found in distinguishing the statutes from the states in the cases cited by respondent. The following cases are noted in consonance with these views: Barber v. Babel, 36 Cal. 11; Gleason v. Spray, 81 Cal. 217 (15 Am. St. Rep. 47, 22 Pac. 551); Bye v. Mann, 10 Mich. 291, especially 296; Williams v. Starr, 5 Wis. 550; 65 Am. Dec. 484, 485, notes; American Savings & Loan Ass’n v. Burghardt et al., Mont. (48 Pac. 391).

The judgment of the superior court is affirmed.

Soott, C. J., and Gordon and Dunbar, JJ., concur.  