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No writ of attachment shall be issued under the provisions of this act in the district court, unless the amount stated in such oath or affidavit as due to the plaintitt, over and above legal set-offs, shall exceed the sum of two hundred dollars.
At the time of filing the affidavit, and before the issuance of any writ of attachment, the plaintiff, or some responsible person in his behalf, shall execute a bond with sutticient furety, in a sum at least double the amount of the demand sworn to, payable to the defendant, and conditioned that the plaintiff shall pay to the defendant all damages that he may incur, by reason of the wrongful suing out of the writ of attachment.
Attachment may issue, although the debt or demand of the plaintiff be not due, when it is shown by the affidavit
1. That the defendant is about to abscond from the state, or that he is concealed therein, to the injury of his creditors; or
2. That the defendant is about to remove any of his property out of the state, or that he is about fraudulently to convey, dispose of, or conceal the same, with intent to defraud his creditors :
In this case no judgment shall be rendered until the debt becomes due, but the attach. ment shall give a lien as in other cases.
CONVEYANCES of lands, or of any estate or interest therein, may be made by deed, signed by the person from whom the estate or interest is intended to pass, being of law. ful age, or by his lawful agent or attorney, and acknowledged or proved and recorded as hereinafter directed.
A husband and wife may, by their joint deed, convey the real estate of the wife in like manner as she might do by her separate deed if she were unmarried.
Every conveyance in writing, whereby any real estate is conveyed or may be affected, shall be acknowledged, or proved and certified, in the manner hereinafter provided.
The proof or acknowledgment of every conveyance affecting any real estate shall be taken by soine one of the following officers :
1. If acknowledged or proved within this state, by some judge or clerk of a court having a seal, or some notary public, or justice of the peace of the proper county.
2. If acknowledged or proved without this state, and within the United States, by some judge or clerk of any court of the United States, or of any state or territory having a seal, or by any commissioner appointed by the government of this state for that purpose.
3. If acknowledged or proved without the United States, by some judge or clerk of any court of any state, kingdom, or empire, having a seal, or by any notary public therein, or by any minister, commissioner, or consul of the United States, appointed to reside therein.
Every officer that shall take the proof or acknowledgment of any conveyance affecting any real estate, shall grant a certificate thereof. and cause such certificate to be endorsed or annexed to such conveyance. Such certificate shall be
1. When granted by any judge or clerk, under the hand of such judge or clerk, and the seal of the court.
2. When granted by an officer who has a seal of office, under the hand and official seal of such officer.
No acknowledgment of any conveyance whereby any real estate is conveyed or may be affected, shall be taken, unless the person offering to make such acknowledgment shall be personally known to the officer taking the same, to be the person whose name is subscribed to such conveyance as a party thereto, or shall be proved to be such by the oath or affirmation of a credible witness.
The certificate of such acknowledgment shall state the fact of acknowledgment, and that the person making the same was personally known to the officer granting the cere tificate to be the person whose name is suhscribed to the conveyance as a party thereto, or was proved to be such by the oath or artirmation of a crediðle witness, whose name shall be inserted in the certificate. Such certificate shall be substantially in the following form, to wit:
Forms of Acknowledgment.
may be) in and for the said county, JOHN Dor and SUSAN his wife, known to me to be the persons described in and who executed the foregoing instrument, who acknowledged to me that they executed the same freely and voluntarily, and for the uses and purposes therein mentioned; and the said SUSAN, having been by me first made arquainted with the contents of such conveyance arknowledged, on an examination by me hal apart from ana without the hiaring of her hu-band, that she executed the same freely and volunturily. without fear, or compulsion, or undue influence, of her husband, and that she does not wish to retract the execution of the same.
JOHN JONES, Notary Public. When the grantor is unknown to the court or officer taking the acknowledgment, the certificate may be in the following form, to wit: State of California, County of Saita. mento : On this tenth day of December, A. D. one thousand eight hundred and fifty, per. sonally appeared before me, JOHN JONES, a notary public (or judge or officer, as the caso may be) in and for the said county, John Doe, satisfactorily proved to me to be.tho person described in, and who executed the within conveyance, by the oath of John SMITH, a competent and credible witness for that purpose, by me duly sworn; and he, the said John DOE. acknowledged that he executed the same freely and voluntarily, for the uses and purposes therein mentioned.
JOHN JONES, Notary Public.
Rights of Married Women. All property, both real and personal, of the wife, owned by her before marriage, and that acquired afterward by gift, bequest, devise, or descent, shall be her separate property; and all property, both real and personal, owned by the husband before mar. riage, and that acquired by him afterward' by gift, bequest, devise, or descent, shall be his separate property.
All property acquired after the marriage by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property.
A full and complete inventory of the separate property of the wife shall be made out and signed by the wife, acknowledged or proved in the manner required by law for the acknowledgment or proof of a conveyance of land, and recorded in the office of the recorder of the county in which the parties reside.
If there be included in the inventory any real estate lying in other counties, the inven. tory shall also be recorded in such counties.
The filing of the inventory in the recorder's office shall be notice of the title of the wife: and all property belonging to her, included in the inventory, shall be exempt from seizure or execution for the debts of her husband.
The hu-band shall have the management and control of the separate property of the wife, during the con nuance of the marriage ; but no sale or other alienation of any part of such property can be made, nor any lien or incumbrance created thereon, un. less by an instrument in writing, signed by the husband and wife, and acknowledged by her upon an examination separate and apart from her husband, before a justice of the supreme court, judge of the district court, county judge, or notary public, or if executed out of the state, then so acknowledged before some judge of a court of record, or be. fore a commissioner appointed under the authority of this state to take acknowledgment of deeds.
The husband shall have the entire management and control of the common property, with the like absolute power of disposition as of his own separate estate. The rents and profits of the separate property of either husband or wife shall be deemed common property:
Upon the dissolution of the community by the death of either husband or wife, one half of the common property shall go to the survivor, and the other half to the descendants of the deceased husband or wife, subject to the payment of the debts of the de. ceased. If there be no descendants of the deceased husband or wife, the whole shall go to the survivor, subject to such payment.
In case of the dissolution of the marriage, by the decree of any court of competent jurisdiction, the common property shall be equally divided between the parties, and the court granting the decree shall make such order for the division of the common prop. erty, or the sale and equal distribution of the proceeds thereof, as the nature of the case may require.
The separate property of the husband shall not be liable for the debts of the wife contracted before the marriage, but the separate property of the wife shall be and continue liable for all such debts.
In every marriage hereafter contracted in this state, the rights of husband and wife shall be governed by this act, unless there is a marriage contract, containing stipulations contrary thereto.
DOWER.—No estate shall be allowed to the husband as tenant by courtesy upon the decease of his wife, nor any estate in dower be allowed to the wife upon the decease of her husband.
Rate of Interest. WHEN there is no express contract in writing, fixing a different rate of interest, inter. est shall be allowed at the rate of ten per cent. per annum, for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing, on any judgment, recovered before any court in this state, for money lent, for money due on the settlement of accounts, from the day on which the balance is ascertained, and for money received to the use of another. Parties may contract for any rate as high as eightee i per cent., but principals and endorsers are held responsible, under heavy pen. alties fur receiving a higher rate of interest.
Wills. No will, except such nuncupative wills as are mentioned in the following section, shall be valid, unless it be in writing, and signed by the testator or by some person in his presence, and by his express direction, and attested by two or more competent witnesses subscribing their names to the will, in the presence of the testator.
No nuncupative will shall be good, when the estate bequeathed exceeds the value of five hundred dollars; nor unless the same be proved by two witnesses, who were prese ent at the making thereof; nor unless it he proved that the testator, at the time of pronouncing the same, did bid some one present to bear witness that such was his will, or to that effect; nor unless euch nuncupative will was made at the time of the last sick. ness and at the dwelling-house of the deceased, or where he or she had been residing for the space of ten days or more, except where such person was taken sick from home, and died before his or her return. Nothing contained herein shall prevent any soldier being in actual service, nor mariner being on shipboard, from disposing of his wages and other personal estate by a nuncupative will.
Any married woman may dispose of all her estate hy will, and may alter or revoke the will, in like manner as a person under no disability might do; provided that no such will, alteration, or revocation, shall be of any validity, without the consent of the husband, in writing, annexed to euch will, alteration, or revocation, and attested and subscribed, and to be proven and recorded in like manner as a will is required to be witnessed, proven, and recorded, unless the wife has power to make a will, conferred by marriage contract or authority in writing, executed by her husband before mar. riage.
Homestead Exemption Law. The homestead, consisting of a quantity of land, to rether with the dwelling-house there. on iint its appartenances, and not exceeding in vive the sum of five thousand dollars, to be selec:ed by the owner thereof. sla'l not be subject to forced sale on execution, or any O'ler final process from a cour, for any debt or liability contractes or incurred after June first. 1851, or if contracted or incurred it any time in ny other place than in this state.
This (ext mption does not extend mechanics or venders' liens, or to why mort:"ge law. ful y ottarvexi; but no mort age, sule. or į nation, by married man, is without the signature of the wife, icknowledged by her anar from berilishana, umess it be to secure the payment of chuse-money. Neiler is it eximit firm libility fiis tases.
Arşia sers my be appointed to vane the homestead if the plaint frequires it. If the lot telected neu homestead cout:in 251 / quarr yarils or lers, and the aperuisera value the land and improveniente at more than $5100, tiexcess or the whole may be soll; if the whole, the amount.xempt must le paid to lie defendant, and no lid can be received for less than $5,00. If the land selecled as a homestead exceed 200 squire yurds, and $5,000 in value, the appriseis nmsi set off-uch sortion in compact furm, ir c'uding the dwellin's. house, as will le of the value of $500. Tle delt odeni nov alto desi rate sich articles of persunal property is are exinitly las from levy and forced sale. The same benefits &ccrue to this wife and his owu legitimale children, upon the death of the head of a fanıily