There is no pretense that the premises now claimed by the appellant as a homestead, were ever occupied by him or by his wife. They were, therefore, never impressed with the character of homestead, as the Court has decided in Cary v. Tice , 6 Cal. 625, and in Benedict v. Bunnell , 7 Cal. 245.
Granting that the above decision applies only to cases where the homestead is claimed against creditors, and that, as between husband and wife, the homestead may be selected and set apart without actual residence, the answer is, that no such selection was ever made, and, therefore, no homestead created prior to the decree of divorce and for the division of the common property, which decree was entered on the 11th of October, 1856.
The appellant's argument amounts to this, that by the marriage the parties acquired the right to select out of their common property a homestead, and that their divorce did not divest that right.
The answer is, that admitting such a right to have existed during the marriage, it never having been exercised during the marriage, it is too late to exercise it now after the marriage is dissolved.
The true statement of the matter is this: during their marriage, the parties possessed, under the statute, the power to create out of their common property the joint estate of homestead; this power was limited to the purposes of the marriage, and when the marriage was dissolved, the power was ipso facto extinguishable.
The joint estate not having been created before the divorce, when the decree of divorce and for the division of the common property was made, the premises now claimed as homestead were clearly common property, and, as such, within the operation of the decree. By the decree, each party was vested with an indefeasible right to have such a division of it made between them as the Court should finally direct.
JUDGES: Terry, C. J., delivered the opinion of the Court. Burnett, J., concurring.
OPINION
TERRY, Judge
The report of the referee is fully sustained by the pleadings and evidence contained in the record.
The question as to defendant's right to have a portion of the homestead set aside for his use, did not arise in the case, as it is not shown that the property claimed as a homestead had been at any time during the existence of the marriage, the residence of the family.
Judgment affirmed.