Appeal from the District Court, Third Judicial District, Santa Clara County.

On the 28th of March, 1861, the defendant was the owner of and living with his family on a lot in the Town of Santa Clara, Santa Clara County. On the same day he executed a declaration of homestead under the Homestead Act of April 28th, 1860, and on the thirtieth of the same month had it filed for record in the Recorder’s office, where it was recorded in the Book of Homestead Declarations.

In July, 1861, he wanted to borrow one thousand dollars of one Woodham and give a mortgage on the lot. Wood-ham declined to take a mortgage, but was willing to let him have the money at one and a half per cent per month interest, if defendant would give him an absolute deed of the lot and take a lease, by the terms of which defendant would pay him as rent what the interest would amount to each month. On the 27th of July defendant and his wife executed and delivered to Woodham an absolute deed of the lot, and Woodham let him have the money, with the understanding that defendant would pay the rent as interest and pay back the principal, and that when he did so Woodham should reconvey to the defendant.

On the 5th day of August, 1861, the lease as agreed was executed, for two years, by both parties, and contained a covenant on the part of defendant to pay the rent and to pay back the one thousand dollars at the end of two years, and a covenant on the part of Woodham to reconvey. The lease was under seal. In November following the defendant sold parcels of the lot, and Woodham executed to the purchasers deeds and received the purchase money on the one thousand dollars.

The following memorandum was afterwards made on the lease:

“ By mutual covenant and agreement of the parties herein mentioned, this lease is extended to August 5th, 1864. The purchase money being changed from one thousand dollars to fifteen hundred dollars, and the rent from fifteen dollars to twenty-five dollars per month; all, both purchase money and rent, to be paid in IT. S. gold coin.

“Joseph Woodham,

“ George Dixon.”

A memorandum was afterwards made extending the lease • to August 5th, 1865. The defendant paid the rent each month until February, 1865, when he ceased doing so. On the 8th of ¡November, 1865, Woodham conveyed the lot to plaintiff, who commenced this action to recover possession of the property December 8th, 1865. The Court below held the transaction to amount to a mortgage, and that it was void under a provision of the Homestead Act of 1850, which declared that no mortgage or alienation of a homestead to secure a loan should be valid, and gave judgment for defendant.

The other facts are stated in the opinion of the Court.