Mr. Chief Justice Murray and Mr. Justice Terry concurred.
This case must be decided upon the principle settled in Davis & Wolf v. Fleishacker, 5 Cal. R. We there held, that a homestead right under our statute cannot attach upon lands held in common or by joint tenancy.
As husband and wife may, by joining in a conveyance, destroy a homestead right already acquired, by selling the whole, so they may equally destroy it by selling and conveying a part of it, if it be done in the shape of an undivided moiety, so as to turn the estate into a tenancy in common ; and when it has been thus destroyed, no question of homestead can be raised against a creditor.
Judgment affirmed.