The declaration of homestead filed by the petitioner in 1864 was not valid, for the reason that the premises were then held in joint tenancy. (Elias v. Verdugo, 27 Cal. 418; Seaton v. Son, 32 Cal. 481, and cases cited.)
That defect was not cured by the homestead act of 1868 (Stats. 1867-8, p. 116), for that act provides only for the acquisition of such right, in lands held in joint tenancy, or tenancy in common, where the person filing the declaration is in the exclusive occupation of the tract sought to be dedicated as a homestead. The Court, therefore, did not err in refusing to set apart such premises as a homestead. Nor did the Court err in refusing to set apart a homestead to the petitioner from other real estate of the decedent, for no petition was filed therefor, as provided by Sections 1,465 and 1,481, Code of Civil Procedure.
Order affirmed.