Shoemake v. Chalfant , 47 Cal. 432 ( 1874 )

By the Court, Rhodes, J.:

Block No. 127, in the town of Santa Barbara, which includes the premises in controversy, became, in 1871, the the homestead of the plaintiff and his wife, and so continued up to the time they were divorced by a decree of the District Court, in July, 1873. The decree directed the homestead property to be equally divided between the husband and wife; and the Commissioners having made and reported a partition, the Court confirmed the same, and adjudged that the respective portions allotted to each be held by them 'respectively, free and clear of all claims by or on the part of the other. The property in controversy was allotted to the plaintiff.

Prior to the divorce, Chalfant, one of the defendants, recovered a judgment against the plaintiff in this action, and, after the decree of divorce was rendered, caused the premises in controversy to be levied upon under an execution issued on his judgment.

The question presented is, whether the premises in controversy remained the homestead of the plaintiff after they were allotted to him by the decree of divorce. The decree severed the sort of joint-tenancy of the parties in the homestead premises, which had been created by the homestead declaration, the residence of the parties, etc., under the provisions of the Homestead Act. It also destroyed the right of survivorship. The joint deed of both parties is no longer essential for the alienation or abandonment of any portion of the premises. ' The family, for whose benefit the provisions of the Homestead Act were mainly designed, was severed by the decree, and neither the husband nor the wife is entitled to reside on.that portion of the homestead premises which was allotted to the other. All the principal qualities of the homestead estate, except that of exemption from liability for debts, etc., having been destroyed by the ■decree, the latter, in our opinion, was also destroyed. The decree was as effectual in its results as would have been a declaration of abandonment.

It results from these views that the portion of the property which was allotted to the plaintiff was liable to execution for the payment of his debts.

Order affirmed; remittitur forthwith.

Neither Mr. Chief Justice Wallace, nor Mr. Justice Crockett, expressed an opinion.