Carroll v. Ellis

63 Cal. 440, 1883 Cal. LEXIS 488

• Court: California Supreme Court
• Decided: May 30, 1883
• Status: Published

Opinion

Per Curiam.

When the several transactions between these parties occurred a homestead right could not attach upon lands held in common, or by joint tenancy. (Kellersberger v. Kopp, 6 Cal. 563; Bishop v. Hubbard, 23 Cal. 517; Elias v. Verdugo, 27 Cal. 418.)

And in Kellersberger v. Kopp, 6 Cal. 565, it was held: “As husband and wife may, by joining in a conveyance, destroy a homestead right already acquired, so they may equally destroy it by selling and conveying a part of it, if it be done in the shape of an undivided moiety, so as to turn the estate into a tenancy in common; and when it has been thus destroyed, no question of homestead can be raised against a creditor.”

The court below found, that, ten years prior to the execution by the husband of the mortgage sought to be foreclosed in this action, “the defendant, Edward Ellis, and his said wife, Kate Ellis, made and executed a deed of conveyance to the undivided one half of said premises, .... to Thomas B. Howard and William H. Ladd.”

It is urged by appellant that the homestead right was not destroyed by such conveyance, because the court also found “and the said Thomas B. Howard and Willian H. Ladd at the same time, and as part of the same transaction, executed to the defendant Edward Ellis, a conveyance of the same undivided half of said premises.”

There can be no doubt, however, there was a period of time, however short, during which the title to the undivided one half was vested in Howard and Ladd.

Judgment and order affirmed.