Neary v. Godfrey

Garoutte, J. This is an appeal from a judgment in favor of the defendants, entered upon an order sustaining a demurrer to the complaint, and the refusal of plaintiff to amend. The demurrer was upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and the facts which were thus claimed to be insufficient to entitle plaintiff to relief were substantially as follows: In 1884, the plaintiff, be[340]ing then the wife of one George Godfrey, and owning the premises described in the complaint as her separate property, united with her husband in a declaration of homestead which was duly recorded. Subsequently an action for divorce was brought by plaintiff against her said husband, and in that action a decree was ultimately entered granting the defendant therein, the husband, who had filed a cross-complaint, a divorce on the ground of the extreme cruelty of the plaintiff. In that proceeding the homestead property was set aside to the husband for the period of ten years, and the language of the decree is as follows: “ Said homestead and homestead right, and the exclusive use and enjoyment thereof, are hereby assigned and' awarded for a limited period, to wit: for the period of ten years from January 7, 1889, unto defendant, the innocent party, and the said homestead is thereafter to go, and it is assigned thereafter to go, to plaintiff as her separate property.” Subsequent to this decree the husband, Godfrey, continued to reside on the premises so awarded to him, but died within the ten years. Before his death he again married, this second wife being the defendant administratrix in the present action. She was residing upon the property at the commencement of this action, and seven years of the ten-year term prescribed by the decree has not yet expired. The present action is in ejectment, brought by the first wife for the recovery of the property included in the aforesaid decree.

The power of the court in which the divorce proceedings were pending to award the use of the homestead (the separate property of the plaintiff) was derived from section 146 of the Civil Code, which declares: “ In case of the dissolution of the marriage by the decree of a court of competent jurisdiction, the community property and the homestead shall be assigned as follows: .... 4. If a homestead has been selected from the separate property of either, it shall be assigned to the former owner of such property, subject to the power of the court to assign it for a limited period to the innocent party.” [341]