Squibb v. Squibb

• Citation: 190 Cal.App.2d 766,12 Cal.Rptr. 346
• Parties: Daniel L. SQUIBB, Plaintiff and Respondent, v. Alma E. SQUIBB, Bank of America National Trust and Savings Association, a corporation, Continental Auxiliary Co., a California corporation, and Does 1 through 5, inclusive, Defendants. Alma E. Squibb, Defendant and Appellant. Civ. 25122.
• Decision Date: 03 April 1961
• Court: California Court of Appeals

Page 346

12 Cal.Rptr. 346

190 Cal.App.2d 766

Daniel L. SQUIBB, Plaintiff and Respondent, v. Alma E. SQUIBB, Bank of America National Trust and Savings Association, a corporation, Continental Auxiliary Co., a California corporation, and Does 1 through 5, inclusive, Defendants Alma E. Squibb, Defendant and Appellant.

Civ. 25122.

District Court of Appeal, Second District, Division 1, California.

April 3, 1961.

Hearing Denied May 31, 1961.

Edmund I. Read, Wilmington, Cal., for appellant.

Loyal C. Pulley, Long Beach, for respondent.

LILLIE, Justice.

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, 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 can not 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 (Section 752, Code of Civil Procedure; 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 co-tenant and a third party, defeats the validity of appellant's defense.

Under Section 1238, Civil Code, a declaration of homestead is limited to certain property, depending upon the status of the claimant and the type of property involved. Thus if 'claimant be married' and female, she may select a homestead from community property, the separate property of her 'husband,' or from that held 'by the spouses as tenants in common or in joint tenancy'; if she be 'unmarried' but head of a family, she may select it from any of 'her property.' As an unmarried person then, only appellant's own property was subject to a homestead; and the property from which she selected the same, at the time was held by the parties not as husband and wife but as all joint tenancy property is held by co-tenants who are not married to each other. Thus inapplicable is the reasoning in those cases, urged by appellant, holding that a wife may impose a homestead on property held in joint tenancy by her and her husband, as well as upon her husband's separate property. Swan v. Walden, 156 Cal. 195, 103 P. 931; Walton v. Walton, 59 Cal.App.2d 26, 138 P.2d 54; Strangman v. Duke, 140 Cal.App.2d 185, 295 P.2d 12.

Having determined that defendant, inasmuch as she was an unmarried person at the time she selected her homestead, could do so only from her own property (Section 1238, Civil Code), the question arises whether she could select one from joint tenancy property held by her with a third person, and if so, whether her co-tenant could thereafter seek partition and sale.

By virtue of the nature of the title by which the property is held by the parties, each is the owner of, and entitled to, an undivided one-half interest therein in his separate right (Barba v. Barba, 103 Cal.App.2d 395, 229 P.2d 465); and it would appear under Section 1238 that either party may select a homestead on his interest therein. It is now well established that tenancies in common and joint tenancies are estates from which a homestead may be selected. Estate of Kachigian, 20 Cal.2d 787, 128 P.2d 865, 867. The Kachigian case involved property, held as a tenancy in common by a man and his deceased brother's wife, on which were two residences and which was physically suitable for a homestead. The court's holding that the probate court is required to select and set apart a homestead for her use out of her deceased husband's undivided one-half interest in the property was predicated on the policy underlying homestead legislation to provide a home for the family and its surviving members where they may reside 'freed from any anxiety that it may be taken from them against their will, either by reason of their own necessity or improvidence, or from the importunity of their creditors.' Estate of Fath, 132 Cal. 609, 613, 64 P. 995. In line with this view the courts deem immaterial the status of a claimant's title as...