Shoemake v. Chalfant

         Appellant states the question here presented too broadly. The question is not as to the general effect of a divorce on a homestead right, but as to the status of the property called the homestead, under the decree in the particular case of Shoemake v. Shoemake .

         This homestead was, by the decree in that case, divided up, a part set off to the wife and a part to the husband--in short, the property was partitioned. This decree is in force.

         The question then is, What effect did this division or partition, acquiesced in by the parties, have on the homestead property? The respondents claim that it destroyed its homestead character, and that the parties thereafter held their several portions like other property, subject to the payment of debts.

         Thetheory of the Homestead Act, under which the declaration was filed, is, that a homestead is a joint tenancy, with at least one of the main incidents of that estate--survivorship. (Hittell, Secs. 3541, 3544.)

         But, by the decrees in Shoemake v. Shoemake, this joint tenancy was wholly destroyed. Each of the partios received a several portion of the premises, to be held, the decree says, free of all claims on the part of the other, or those claiming by, through or under him or her.

         There is, therefore, no longer any right of survivorship. The main support, or characteristic, of the joint tenancy is gone. Hence, we conclude the homestead is destroyed.

         If the property is a homestead at all, it is such as an entirety. The whole property is either one homestead or none. There certainly can not have been two homesteads carved out of one. This homestead was originally created for the benefit of the head of a family. It cannot be said that there are now distinct heads of two families, each of whom is furnished with a separate homestead out of this property.

         We do not argue that merely because Shoemake was divorced from his wife the homestead was destroyed, but that thedecree splitting up the property destroyed it. And we can not now inquire whether the Court ought to have so decreed or not.

         JUDGES: Rhodes, J. Neither Mr. Chief Justice Wallace, nor Mr. Justice Crockett, expressed an opinion.

         OPINION

          RHODES, Judge

         Block No. 127, in the town of Santa Barbara, which includes the premises in controversy, became, in 1871, the the homestead of the plaintiff and his wife, and so continued up to the time they were divorced by a decree of the District Court, in July, 1873. The decree directed the homestead property to be equally divided between the husband and wife; and the Commissioners having made and reported a partition, the Court confirmed the same, and adjudged that the respective portions allotted to each be held by them respectively, free and clear of all claims by or on the part of the other. The property in controversy was allotted to the plaintiff.

         Prior to the divorce, Chalfant, one of the defendants, recovered a judgment against the plaintiff in this action, and, after the decree of divorce was rendered, caused the premises in controversy to be levied upon under an execution issued on his judgment.

         The question presented is, whether the premises in controversy remained the homestead of the plaintiff after they were allotted to him by the decree of divorce. The decree severed the sort of joint-tenancy of the parties in the homestead premises, which had been created by the homestead declaration, the residence of the parties, etc., under the provisions of the Homestead Act. It also destroyed the right of survivorship. The joint deed of both parties is no longer essential for the alienation or abandonment of any portion of the premises. The family, for whose benefit the provisions of the Homestead Act were mainly designed, was severed by the decree, and neither the husband nor the wife is entitled to reside on that portion of the homestead premises which was allotted to the other. All the principal qualities of the homestead estate, except that of exemption from liability for debts, etc., having been destroyed by the decree, the latter, in our opinion, was also destroyed. The decree was as effectual in its results as would have been a declaration of abandonment.          It results from these views that the portion of the property which was allotted to the plaintiff was liable to execution for the payment of his debts.

         Order affirmed; remittitur forthwith.