Sears v. Dixon
California Supreme Court
Appeal from the District Court, Third Judicial District, Santa Clara County. On the 28th of March, 1861, the defendant was the owner of and living with his family on a lot in the Town of Santa Clara, Santa Clara County. On the same day he executed a declaration of homestead under the Homestead Act of April 28th, 1860, and on the thirtieth of the same month had it filed for record in the Recorder’s office, where it was recorded in the Book of Homestead Declarations.
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Appeal from the District Court, Third Judicial District, Santa Clara County. On the 28th of March, 1861, the defendant was the owner of and living with his family on a lot in the Town of Santa Clara, Santa Clara County. On the same day he executed a declaration of homestead under the Homestead Act of April 28th, 1860, and on the thirtieth of the same month had it filed for record in the Recorder’s office, where it was recorded in the Book of Homestead Declarations. In July, 1861, he wanted to borrow one thousand dollars of one Woodham and give a mortgage on the lot. Wood-ham declined to take…
1Opinion of the Court
By the Court, Currey, 0. J.:
It seems to he conceded hy hoth parties that, if the transaction between Dixon and Woodham amounted to a mortgage, it was void for any purpose whatever, according to the provisions of the second section of the Homestead Act of 1860. (Stats. 1860, p. 311.) The inquiry then is whether it constituted a mortgage or a conditional sale. Ho question can arise here as to the admissibility or the effect of parol evidence to convert a deed, absolute on its face, into a mortgage, for the evidence is not returned, and it must he presumed that the facts in issue were found upon…
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