Kaupe v. Kaupe

WHITE, P. J.

Plaintiff wife appeals from a judgment for defendant husband in an action to partition real property.

The property is a dwelling and garage upon one lot in Los Angeles. It cannot be partitioned in kind. It was acquired by plaintiff and defendant about a year after their marriage, by deed to them as joint tenants dated May 19, 1942. On June 29, 1942, plaintiff signed, verified and caused to be recorded her declaration of homestead on said property for the benefit of herself and her husband.

Plaintiff and defendant lived together on the premises from 1942 until July 1951, when plaintiff left and commenced an action for divorce. Defendant cross-complained for divorce. The superior court granted a divorce to neither. Plaintiff executed and recorded an “Abandonment of Homestead” on September 2, 1953. It was not signed by the defendant. The

[513]

court in the instant action found that each of the parties “is the owner in fee of an undivided one-half interest in the property,” and from its findings, it concluded that “said joint tenancy real property ... is subject to a valid homestead for the benefit of the defendant husband . . .”; and for that reason it “is not subject to partition by the plaintiff wife while plaintiff and defendant are husband and wife.”

Appellant contends thait the court erred in concluding that the property was not subject to partition because of the homestead which she had filed thereon. Respondent states that “plaintiff wife . . . may not destroy the homestead rights vested in the defendant husband by forcing a sale of said real property by action of partition, ’ ’ and relies upon the decision in

Walton

v.

Walton,

59 Cal.App.2d 26 [138 P.2d 54].

“A joint tenancy is one estate and in it the rights of the spouses are identical and coextensive.”

(Siberell

v.

Siberell,