Squibb v. Squibb

LILLIE, J.

The parties, while husband and wife, acquired title to certain joint tenancy property; thereafter the wife sued for a divorce and a final decree was entered October 28, 1957. Neither the interlocutory nor the final decree made disposition of the use or ownership of the property.

(Fox

v.

Fox,

18 Cal.2d 645 [117 P.2d 325].) It constitutes a residence wherein the parties lived during their marriage; the wife and the children continued to reside on the premises. The property is encumbered and, as a practical matter, is incapable of physical partition.

Almost, two years after the entry of the final decree of divorce defendant, appellant herein, on October 23, 1959,

[768]

filed a declaration of homestead on the property which was occupied by her and the children. It was recorded January 6, 1960. On December 4, 1959, plaintiff sued appellant for partition and sale of the property; her answer alleged her execution and recordation of the declaration of homestead, which defense the lower court struck on plaintiff’s motion. An interlocutory judgment ordering partition and sale was entered; defendant appeals therefrom.

The issue before us is whether appellant’s declaration of homestead constitutes a defense to the action. Urging a liberal construction of the homestead statute, appellant contends that the law should be applied to prevent respondent from breaking up her home by forcing a sale of the premises.

The undisputed facts that the subject property is held in joint tenancy, its “partition cannot be made without great prejudice to the parties” and respondent was not then married to appellant, justified the bringing of the within action by him for partition and sale (Code Civ. Proc., § 752;

Barba

v.

Barba,

103 Cal.App.2d 395 [229 P.2d 465]); and the further fact that after October 28, 1957, the parties were no longer married to each other and when appellant selected her homestead she was unmarried and her relation to respondent was solely that of cotenant and a third party, defeats the validity of appellant’s defense.