Wiltrakis

On this appeal by the wife from a judgment in favor of the husband in his action for partition, the only question presented is whether, after a decree of separate maintenance, the wife is entitled to claim a homestead in the husband’s separate property and thus to bar his action. This case is one of first impression under section 1300 of the Civil Code.

The appeal is on a settled statement of the following facts: Before their separation, the parties owned in joint tenancy and resided in a single family dwelling on which no homestead had ever been declared. In January 1964, after a contested trial, the wife received a decree of separate maintenance providing that the home was the community property of the parties and that each had an undivided one-half interest therein as a tenant in common. After the decree became final, the husband filed this action for partition and, pending the trial thereof, the wife recorded a declaration of homestead on the entire property on behalf of herself and her husband.

Under section 1238 of the Civil Code, a declaration of homestead is limited to certain property, depending on the status of the claimant and type of property involved. If the…