Kellersberger v. Kopp
Before: Heydenfeldt
Synopsis
As a 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 an undivided portion of it.
It seems that a covenant by the husband to convey an undivided interest in the land, executed before any residence of his family on the premises, sustained by a deed made by the husband alone after the residence of his family and that of his covenantee on •the premises, prevents the homstead right from attaching; and that a mortgage, executed by the husband alone after the residence of the two families on the land, but before the deed was executed by the husband to his co-tenant, will be maintained against the claim of homestead.
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.
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