[1a] Prior to 1929 it was well settled in California that, with certain exceptions where the owners were husband and wife, land owned by persons as tenants in common or joint tenants could not be subject to a homestead. The rule, announced in Wolf v. Fleischacker, 5 Cal. 244 [63 Am. Dec. 121] (1855), was first applied to an attempt by a co-owner to create a homestead exempt from execution during his life. ( Reynolds v. Pixley, 6 Cal. 165; Giblin v. Jordan, 6 Cal. 416; Kellersberger v. Kopp, 6 Cal. 563; Bishop v. Hubbard, 23 Cal. 514 [83 Am. Dec. 132]; Elias v. Verdugo, 27 Cal. 418; Seaton v. Son, 32 Cal. 481; Cameto v. Dupuy, 47 Cal. 79; First National Bank v. De La Guerra, 61 Cal. 109; Fitzgerald v. Fernandez, 71 Cal. 504 [12 P. 562]; Rosenthal v. Merced Bank, 110 Cal. 198 [42 P. 640]; Schoonover v. Birnbaum, 148 Cal. 548 [ 83 P. 999].)
In 1855 the California court first announced the doctrine that a homestead cannot be claimed by a cotenant in lands held in cotenancy. ( Wolf v. Fleischacker, 5 Cal. 244, 63 Am. Dec. 121.) After reviewing that case and other early California cases to the same effect, Freeman in his work on Cotenancy and Partition, section 54, says: "But we see no sufficient reason, even in the absence of statutes directly bearing upon the subject, for holding that a general Homestead Act does not apply to lands held in cotenancy."
The second question to be answered may be thus stated: May land, held in joint tenancy by husband and wife, be impressed with a homestead at the instance of the wife, the sole objection to the validity of the homestead being the nature of the tenancy in which the land is held? As early as 1855, this court decided, in Davis v. Fleischacker, 5 Cal. 244, [63 Am. Dec. 121], that under the Homestead Act as it then existed, a homestead could not be carved out of land held in joint tenancy or by tenancy in common, the reason given being that it required the title of all the tenants to constitute an ownership in the land and that there was, therefore, no part of it which he (the homesteader) had the power to set apart as his own so as to constitute the homestead, and no mode had been provided under the Homestead Act for the ascertainment and separation of the particular estate sought to be impressed by the homestead. In that case the homestead was attempted to be declared by the husband who held in joint tenancy with two strangers to his family.
The position that there can be no homestead in land held in a tenancy in common, orjoint tenancy, is an unfounded assumption, and all our decisions on that subject go on that ground. (Wolf v. Fleischacker , 5 Cal. 244.) It is perfectly easy to ascertain the respective parts of each tenant.
The learned judge of the lower court concluded that in view of the decisions of this court, a homestead could not be set apart from this property so owned by the deceased as a tenant in common with another person, and therefore denied the application. Whatever we might think if the question were a new one in this state, it is clear that the general rule to the effect that a homestead cannot be created or set apart from property owned by the husband or wife and a third party as tenants in common or joint tenants is too thoroughly established by a long line of decisions, commencing with Wolf v. Fleischacker, 5 Cal. 244, [63 Am. Dec. 121], and running down practically to this time, to permit us now to hold otherwise. Most of these decisions were discussed in the comparatively recent case of Schoonover v. Birnbaum, 148 Cal. 548, [ 83 P. 999], (decided in January, 1906), in which it was sought to have the prior decisions on the question overruled, and where we felt compelled to say that "without expressing any opinion concerning the soundness or unsoundness of the decisions in question, we are of the opinion that they should be adhered to, leaving it to the legislature to extend the right of the homestead to cotenants if it shall see fit."
If this could have been done the court erred in refusing to make the homestead order asked by petitioner. It has uniformly been held by this court commencing with the early cases of Wolf v. Fleischacker, 5 Cal. 244, [63 Am. Dec. 121], and Giblin v. Jordan, 6 Cal. 416, followed by a number of other decisions, including the late cases of Schoonover v. Birnbaum, 148 Cal. 551, [ 83 P. 999], and United States Oil etc.Co. v. Bell, 153 Cal. 781, [ 96 P. 901], that under both the early homestead acts, and the present code provisions respecting homesteads, a homestead may not be created by one joint tenant in lands held in joint tenancy or as tenants in common, except as authorized by the act of 1868 (Stats. 1867-8, p. 116), which provides that a homestead may be declared upon land of a cotenancy where the declarant is in the exclusive occupation of it and residing thereon.
We are now earnestly requested by the appellant to overrule these decisions. The court in these decisions followed the precedents established on the subject under the law existing prior to the adoption of the codes, consisting of the original case of Wolf v. Fleischacker, 5 Cal. 244 [63 Am. Dec. 121], and the cases of Giblin v. Jordan, 6 Cal. 416; Seaton v. Son, 32 Cal. 481; Cameto v. Dupuy, 47 Cal. 79; First Nat. Bank v. De LaGuerra, 61 Cal. 109; and Fitzgerald v. Fernandez, 71 Cal. 504 [12 P. 562], following it. The argument of the appellant is that the original case was made upon a misapprehension of the nature of the homestead claim and a belief that the setting apart of a homestead by the sheriff, which the law at that time required, would in some way interfere with the rights of the cotenant or deprive him thereof, and hence that the law should not be construed to include such estates; that by subsequent decisions it has been established that the homestead interest, whatever its nature may be, does not affect the rights, interest, or estate of persons holding adversely or collaterally, but only serves to protect the title or interest of the claimant, of whatever nature, in the land against the demands of creditors, and to affect the rights of heirs and ot
It is conceded that, at the time the declaration of homestead was filed, the legal title to the lot in question was vested in A. and D. Rosenthal, as tenants in common. It has been uniformly held in this state that a homestead cannot be created upon land held in cotenancy, or tenancy in common, in favor of one of the cotenants (Wolf v. Fleischacker , 5 Cal. 244; 63 Am. Dec. 121; Giblin v. Jordan , 6 Cal. 416; Seaton v. Son , 32 Cal. 481; Cameto v. Dupuy , 47 Cal. 79; First Nat. Bank v. De la Guerra , 61 Cal. 109; Fitzgerald v. Fernandez , 71 Cal. 504), even though the declarant supposed himself to be the sole owner (Seaton v. Son, supra ), and that a conveyance by the husband and wife of an undivided moiety of the land would destroy the homestead right. (Carroll v. Ellis , 63 Cal. 440.) As early as 1865 it was said, in answer to an effort to overturn this rule: "It is now too late to reinvestigate the reasons upon which those decisions are based.
If either of these questions should be decided against appellant the order appealed from must be affirmed; and, as it is well settled in this state that a homestead cannot be created by a cotenant in lands held by tenancy in common, it is not necessary to consider the first question above stated. In Wolf v. Fleischacker , 5 Cal. 244, 63 Am. Dec. 121, it was held that a homestead could not be declared by a cotenant in lands held in cotenancy. In Giblin v. Jordan , 6 Cal. 416, it was held that land held by a husband, with his wife and child, as tenants in common, is not subject to homestead rights under the laws of this state.
1868, p. 116), a homestead could not be carved out of land held by one in joint tenancy or as a tenant in common. (Wolf v. Fleischacker , 5 Cal. 244; S. C., 63 Am. Dec. 121; Reynolds v. Pixley , 6 Cal. 165; Giblin v. Jordan , 6 Cal. 417; Kellersberger v. Kopp , 6 Cal. 564; Bishop v. Hubbard , 23 Cal. 517; Elias v. Verdugo , 27 Cal. 418; Seaton v. Son , 32 Cal. 483.) The act of March 9, 1868, supra, under which appellant claims her homestead became valid, is as follows: