Dissenting. — I am-unable to concur in the conclusion reached by the majority of the court. Section 2480, Revised Statutes, provides how community and homestead, property shall be disposed of in ease of divorce, and is as follows : "In case of the dissolution of the marriage by the decree of a court of competent jurisdiction, the community property and the homestead must be assigned as follows: 1. If the decree be rendered on the ground of adultery or extreme cruelty, the community property must be assigned to the respective parties in such proportions as the court, from all the facts of the ease and the conditions of the parties, deems just; 2. If the decree be rendered on any other ground than that of adultery or extreme cruelty, the community property must be equally divided between the parties; 3. If a homestead has been selected, from the community property, it may be assigned to the innocent party, either absolutely or for a limited period, subject, in the latter ease, to the future disposition of the court; or it may be divided or be sold and the proceeds divided; 4. If a homestead has been selected from the separate property of either, it must be assigned to the former owner of such property, subject to the power of the court to assign it for a limited period to the innocent parly.”
*287Id the 'ease at bar it is alleged in the complaint that the property involved is community property acquired by the joint efforts of both husband and wife and thereafter was homesteaded under the laws of this state by the wife. While it does not appear on what grounds the wife obtained the divorce in the Oregon court, the presumption is that it was on sufficient ground and that the husband was in fault. If it was obtained on any other ground than that of adultery or extreme cruelty and had been obtained in a competent court of the state of Idaho, said section of the statute provides that the community property must be equally divided between the parties; and in other cases it must be divided as the court, from all the facts of the case and condition of the parties, deems just. And I do not think the fact that the divorce was obtained in the state of Oregon is a sufficient reason for depriving the wife of a part of the property that she had helped to accumulate. A court of equity would have power to do justice between the parties after the evidence ujas introduced on the trial, and if it showed the wife was entitled to receive a portion of the property that she assisted in accumulating, she certainly ought to have it.
The plaintiff in this action had filed a declaration of homestead on the land in controversy, and section 3041, Eevised Statutes, declares that a homestead can be abandoned only by a declaration of abandonment or a grant of conveyance thereof, executed and acknowledged as therein specified.
The question of an innocent purchaser of said property, for á value, without notice, is not involved in this case. I think the allegations of the complaint state a cause of action, and the demurrer should have been overruled.