Appeal from the District Court of the Twelfth Judicial District.

Cary, the respondent, was the owner and holder of a mortgage on certain real estate in the city of San Francisco, embracing several lots, executed by Tice alone, without his wife, which was sought to be foreclosed, when, by leave of Court, Tice and wife intervened for a homestead in a part of the mortgaged premises. The decision of the Court below was against the claimants of the homestead, and they appeal to this Court to reverse the judgment.

The facts are agreed upon by counsel, and the question involved is purely a question of law. The facts are as follows:

Tice was a married man when he came to California, in 1849, where he has resided ever since. He left his wife in New York. On the 24th of August, 1854, he executed the mortgage set forth in the complaint, to secure the sum of $20,000 to the plaintiff. He had made arrangements to have his wife come to California the preceding June, at which time she was ready and waiting to come, staying temporarily at her brother’s, in Peekskill, and had been waiting and expecting to come for several month previously, but, owing to accidents unnecessary to mention, was prevented from coming, and did not arrive here until January,, after the mortgage was executed.

Tice purchased the mortgaged premises in 1851, and entered upon them at that time, and occupied the same as his home until his wife arrived, and after her arrival, until this action was brought. Said premises comprised all the real estate Tice owned or possessed in this State.

The cause was tried by the judge, without a jury, and decided against the homestead claim, on the ground that the wife was not actually living in this State when the mortgage was executed by the husband.

Tice and.his wife appealed.