Cofer

Defendant was a married woman residing upon certain real estate, her separate property. She filed-a declaration of homestead thereon for the joint benefit of herself and husband. The homestead declaration contained all the statements and recitals demanded by the statute. Subsequently she obtained a decree of divorce from her husband. Neither by the pleadings in that action, nor by the decree of the court, was the matter of the homestead property adverted to. After the filing of the declaration, and prior to the divorce decree, plaintiff obtained a money judgment against defendant. Subsequent to the decree of divorce plaintiff attempted to enforce its judgment by a levy and sale of the homestead property. It became the purchaser at such sale, and, basing its claims upon the title thus obtained, brings this action for possession of the realty.

Plaintiff’s judgment was one which could not be enforced by a seizure and sale of the homestead property, and, consequently, no title was vested in the purchaser at such sale. Section 1265 of the Civil Code provides: “ From and after the time the declaration is filed for record, the premises therein described constitute a homestead. .... But…