The question here involved is whether under the facts disclosed by the record a husband, owning a joint tenancy interest with his wife in real property upon which she has declared a homestead for the benefit of herself, her husband and their minor child, may destroy the homestead rights of the wife by a forced sale of the property brought about through the medium of an action to partition the property. The trial court held in the negative, and the husband appeals.
The following are the facts: Subsequent to their marriage the parties acquired, as joint tenants, a parcel of land in Marin County on which they built a home. The dwelling was completed in December, 1937, and was immediately occupied by them and their minor son as the family home. A few months later the husband abandoned his family and took up his residence elsewhere. The wife and the minor son continued to occupy the premises as the family home; and on or about March 8, 1939, the wife filed suit in the city and county of San Francisco for permanent maintenance and support. On April 4, 1939, on stipulation, an order was made for the issuance of an injunction pendente lite, enjoining the husband from transferring, encumbering, or otherwise disposing of any real or personal property, including stocks, bonds and other securities in his possession or under his control; and on April 10, 1939, he filed the present action in Marin County for the partition of the home property. Since it was not susceptible of physical division, he asked that the premises be sold by a referee and the proceeds divided equally between himself and his wife. Two days later and on April 12, 1939, the wife declared a homestead on the property for the benefit of herself, her husband and their minor child. The suit for permanent maintenance and support was tried first; and on December 23, 1940, a decree was entered in favor of the wife wherein it was adjudged, among other things, that having established facts which would be sufficient to warrant the granting to her of a divorce upon the grounds of adultery *29 and extreme cruelty, she was entitled to live separate and apart from him; and she was awarded the custody of the minor son and the husband was directed to pay to her certain sums of money, including a monthly sum for the support of herself and the minor son. Some four months later the present action was tried. The answer set up the existence of the homestead, and the trial court held that it was not subject to forced sale by the husband in an action in partition. Accordingly judgment was entered that plaintiff take nothing by his action. The constitutional and statutory provisions creating and insuring homestead rights, and the decisions construing and applying those provisions sustain the trial court’s decision.
Ever since the year 1868 it has been the declared law of this state that a wife may impress a homestead on premises held in joint tenancy by herself and her husband, as well as upon his separate property (Stats. 1867-8, p. 116; sec. 1238, Civ. Code;
Swan
v.
Walden,
Appellant contends, however, that despite the constitutional and statutory provisions insuring protection against the forced sale of homesteaded premises, he is entitled, as the own *31 er of a joint interest in the property, to invoke the provisions of section 752 of the Code of Civil Procedure, which provide for the partition of real property, and that therefore, since the premises herein are not capable of being divided and allotted in kind, he is entitled to force the sale thereof, and to receive a full one-half of the proceeds of the sale. In other words, he argues that his property' rights as a joint tenant are paramount to homestead rights secured to his wife by the homestead laws. With this contention and argument we are unable to agree.
As stated in California Jurisprudence, it is a general rule that a homestead, whether probate or statutory, may not be made the subject of an action for partition. (20 Cal.Jur. 611.) The rule is founded largely upon the principle that there is a natural and moral obligation on the head of the family to provide for the support of his wife and children and other persons dependent upon him, which is, if not paramount, equal to his obligations to pay his debts (13 R.C.L. p. 545) and that land occupied as a homestead may be regarded as subject to a trust imposed by law which would necessarily be defeated by partition.
(Mills
v.
Stump, supra.)
The case last cited involved a probate homestead covering 25 acres which was set apart to the widow from a 320-acre tract, and the entire tract was subsequently distributed in undivided shares to the widow and other heirs as tenants in common. The widow brought suit to partition the 295 acres not included in -the homestead, and the other heirs sought to include in the partition action the homesteaded 25 acres. The court held that this could not be done, that “Section 752 of the Code of Civil Procedure was not intended to authorize the partition of the homestead interest during its enjoyment,” and that therefore the homesteaded 25 acres could not be brought into the partition action. In so holding the court went on to say: “The homestead interest in land is the offspring of statute, created for the humane and benevolent purpose of furnishing what its designation indicates— a home for the persons for whom the law awards it, and in its enjoyment it is by law made a sanctuary against execution creditors and should be against every other form of hostile attack. In the present case the homestead having been carved out of the husband’s separate estate was decreed to
*32
plaintiff for her sole nse during her natural life. But plaintiff does not hold this interest as parcenary, joint tenant, or tenant in common. While it partakes of some of the attributes of a joint tenancy, it is not such ah interest in strict legal sense nor in the sense the term is used in the statute. It is not by virtue of her homestead interest that plaintiff brings the action, but as a tenant in common of the land with defendants. Her homestead interest is of such character as of itself to be incapable of partition. ‘The purpose of a homestead is to secure a home to each and all those clothed with a homestead right—to each and all of them; and the power of a stranger to enter into possession of the land, and, as a tenant in common to interfere with its occupancy and control by the homestead claimants and have it partitioned, or sold, if division be impracticable, would be inconsistent with the very nature of a homestead and violative of the very purpose for which a homestead is created. ’
(Moore
v. Hoffman,
A case involving a statutory homestead is Swan v. Walden, supra. There three contiguous lots (3, 4 and 5) were acquired by Walden and his wife, as joint tenants, and the wife declared a homestead on lots 3 and 4. Subsequently, the homestead never having been abandoned, the husband executed a deed of grant of all his interest in the three lots to Swan, who brought an action to partition all of the property covered by the deed. Judgment passed for Swan, Mrs. Walden appealed, and the judgment was reversed. It was held, among other things, that since the wife did not join in the execution of the Swan deed the homestead she had impressed on lots 3 and 4 could not be destroyed by an action for partition.
At the time that case was decided, said section 1238 contained no express provision, as it does now, that a wife may declare a homestead on property held in joint tenancy with her husband. It provided merely that “If the claimant be married, 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 . . and in holding that under the wording of the statute as it then stood, a wife could impress a homestead on property held in joint tenancy by herself and husband, the court said: “Here the wife seeks to impress the whole land with the homestead characteristic. This she may do as to her own interest, which is her separate property, and this she may do as to her husband’s interest, since she has the power to declare a homestead upon the husband’s separate property, though he has no such power over hers. The homestead thus attempted to be declared is upon land, all of which is susceptible at the instance of the wife of having the homestead characteristics *34 impressed upon it. There is no occasion for segregation or partition or delimitation of boundaries, since the homestead attaches to all of the estate and all of the land.” (Italics ours.) In other words, the decision in that ease rested upon the theory that the interest of each spouse was separate property and that since the wife had power to declare a homestead on her husband’s separate property, and she was the owner of the remaining interest, the whole of the estate and all of the land was subservient to the homestead (Watson v. Peyton, supra.) It follows necessarily, therefore, that since a husband cannot in any manner, without his wife’s consent, destroy a homestead declared by her on property of which he is sole owner, he cannot by an action in partition bring about the destruction of a homestead declared by her on property in which he owns a lesser estate, namely, only a joint tenancy interest. In the ease of Lang v. Lang, supra, the homestead was declared on community property, and the court there fully recognized the existence of the general rule above mentioned that a homestead is not subject to an action for partition, but it was held that under the facts of that case the rule did not there apply for the reason that the family was severed by a decree of divorce and the qualities of the homestead estate were thereby destroyed.
The same general rule prevails in other jurisdictions (13 R.C.L. p. 686; Thompson on Real Property, vol. 1, p. 1011), among them being the State of Minnesota, wherein a case arose which is identical in all of its essential facts with the one here presented, except that there the action in partition was brought by the wife.
(Grace
v.
Grace,
In view of the foregoing it is our conclusion that the trial court herein properly held that the homestead could not be destroyed by the husband through the medium of an action for the partition of the property.
In 1929 said section 1238 was amended by adding the following sentence thereto: “Property, within the meaning of this section, includes any freehold title, interest or estate which vests in the claimant the immediate right of possession, even though such right of possession is not exclusive”; and in a very recent case
(Estate of Kachigian,
We have found nothing in the cases cited by appellant from outside jurisdictions which may be said to be here controlling. Some of them involved homesteaded property held by one of the spouses and a third person; others are based on statutory provisions unlike ours; and the remaining ones involved factual situations different from those here presented.
Nor is the situation here altered by the fact that in her declaration of homestead the wife stated that she estimated the value of the premises to be $50,000. In this connection it may be stated that appellant admitted that his net financial worth exceeded $300,000, and at the time of trial he valued the premises in question at only $15,000 or $20,000. However, the matter of the value of the homesteaded premises presents a false issue, for as said in
Lubbock
v.
McMann,
*38 It is true that section 1260 of the Civil Code provides that “Homesteads may be selected and claimed: 1. Of not exceeding five thousand dollars in value by any head of a family; 2. Of not exceeding one thousand dollars in value by any other person. ’ ’ But that section was enacted for the benefit of that class of judgment creditors embraced within section 1245 of said code, who are given the right under the preceding code sections to institute the proceedings prescribed therein for the ascertainment of the value of homesteaded premises, and upon the sale thereof to have the proceeds of the sale over the amount of the exemption fixed by said section 1260 applied to the satisfaction of the execution. As already pointed out, the proceeding provided for in those code sections is not available to appellant because admittedly he is not a judgment creditor in any sense of the term.
In further support of the judgment it is urged that appellant in instituting the partition suit against his wife did so for malicious and spiteful reasons, and to oust her from the home so that he might obtain possession thereof for himself, and that therefore, since a suit in partition calls for the application of equitable principles
(Akley
v.
Bassett,
The judgment is affirmed.
Peters, P. J., and Ward, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied July 29, 1943. Edmonds, J., and Sehauer, J., voted for a hearing.