Walton

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,…