Appeal from the District Court of the Eleventh Judicial District, County of El Dorado.

This was an action of ejectment brought against Alfred Bell, to recover possession of a house and lot in the city of Placerville.

Plaintiff purchased the premises under an order of sale, issued on a judgment of foreclosure of mortgage against Bell and wife, and in favor of himself. A sheriff’s deed was duly executed and delivered by the sheriff to the plaintiff. The mortgage foreclosed was executed by both Bell and his wife.

Bell filed his answer, denying the allegations in the complaint, and setting up the fact that he was a married man, living on the property with his family, at the time of plaintiff’s purchase under sheriff’s sale, and claiming the property as a homestead. Mary Bell, wife of the defendant, intervened in the action, averring that she resided on the premises with her husband, and claimed the property as a homestead.

The only point made on the trial was as to the sufficiency of the following acknowledgment of service in the suit to foreclose the mortgage, endorsed on the complaint in that suit, viz.:

“We acknowledge service of the above complaint, and waive any other service and notice in the within-entitled cause.

" Alfred Bell,

“ Mary Bell.

“ November 6, 1856.”

The recital in the beginning of the decree of foreclosure, is as follows:

“ In this action, the defendants having been regularly served with process, or waived service by acknowledgment, and having failed to appear,” etc.

The Court below found that the premises in question had been dedicated as a homestead, but decided that the sale, under the decree in the foreclosure suit, divested the right of the wife in the premises, and gave judgment for the plaintiff, and defendants ■appealed.