Huellmantel v. Huellmantel

McFarland, J. This is an action for a divorce brought by a wife against her husband. Certain other persons were made defendants, as claiming some interest in the property involved in the litigation. The court found that the defendant was guilty of extreme cruelty and willful neglect. A decree was entered granting a divorce to plaintiff upon these grounds, and also making disposition of certain property. The husband and also the defendants, Herman Scholden, Francis Steffen, and Rosalia Steffen, appeal from the judgment and from an order denying a motion for a new trial.

The evidence as to the extreme cruelty and willful neglect was no doubt somewhat conflicting, but we think that it fully warranted the court below in finding those issues in favor of the respondent. This is certainly so as to the charge of extreme cruelty; and, that being established, the finding as to willful neglect is immaterial. That part of the judgment which decrees a divorce is clearly correct and should not be disturbed.

But that part of the decree which disposes of the property interests involved is erroneous. Upon a first examination of the case we were inclined to think that the judgment might be modified, but upon further examination we find that this result cannot be.reached because there are certain findings which are erroneous and which cannot be changed here.

The appellant Huellmantel at the time of his marriage with respondent was the owner of a certain lot of land in the city of San Francisco. Upon the front part of said lot there is a three-story building which had generally been rented to tenants, and on the rear part of the lot there is a smaller house in which the husband and wife resided. Several years ago the respondent filed a homestead claim upon the whole of this lot. By the decree the rear half of'the lot, described by metes and bounds, including said dwelling-house and a certain right of way, is given as her homestead to the respondent absolutely “for herself, her heirs, and assigns for[409]ever.” The setting apart of this portion of the lot to the respondent was clearly correct if it had been given to her for a limited period only, but it was error to award it to her absolutely, as stated in the decree. The specific findings of fact show that the whole lot was the separate property of the husband at the time the homestead was filed, and has ever since remained such. Section 1238 of the Civil Code provides that “the homestead may be selected from the community property or the separate property of the husband, or, with the consent of the wife, from her separate property”; but when we seek to learn the legal effect of the filing of a homestead, we must look to other provisions of the code to find what rights attach under it when those rights come to be enforced. Certain sections of the code provide for the protection of a homestead against forced sale; section 1474 of the Code of Civil Procedure provides how a homestead shall be disposed of upon the death of the husband or wife; and section 146 of the Civil Code provides how it shall be disposed of upon the dissolution of the marriage by divorce. The latter provision is the only one with which we are concerned in this case, and the fourth subdivision of that section provides as follows: “If a homestead has been selected from the separate property of either, it shall be assigned to the former owner of said property, subject to the power of the court to assign it for a limited period to ■ he innocent party”—the innocent party being the one t ho obtains the divorce upon the ground of adultery or e. treme cruelty. Therefore, in the case at bar, the co i.rt could assign the property to the respondent only for a limited period, which, as heretofore held by this com t, cannot exceed the life of the party to whom it is assigned. This part of the judgment would have been correct if, instead of the words “her heirs and assigns forever,” there had been a limited period of time stated, such as the court below may have determined to be just.