Kellersberger v. Kopp , 6 Cal. 563 ( 1856 )

The opinion of the Court was delivered by Mr. Justice Heydenfeldt.

Mr. Chief Justice Murray and Mr. Justice Terry concurred.

This case must be decided upon the principle settled in Davis & Wolf v. Fleishacker, 5 Cal. R. We there held, that a homestead right under our statute cannot attach upon lands held in common or by joint tenancy.

As husband and wife may, by joining in a conveyance, destroy a homestead right already acquired, by selling the whole, so they may equally destroy it by selling and conveying a part of it, if it be done in the shape of an undivided moiety, so as to turn the estate into a tenancy in common ; and when it has been thus destroyed, no question of homestead can be raised against a creditor.

Judgment affirmed.