This was an action to foreclose a mortgage, executed by the defendant to the plaintiff on a lot of land situated in San José. The defendant set up by answer as a defense the following :

The answer concludes with a prayer that the mortgage be by the decree of the Court adjudged null and void; that her homestead be declared to be free from any lien or charge thereon in favor of plaintiff; that the Beceiver heretofore appointed be discharged, and that he be directed to account and pay over to the defendant all moneys he may have received as such, and for such other and further judgment and decree as may he meet in the premises, and for general relief.

To the defense set up plaintiff demurred. The Court sustained the demurrer, and defendant declined to amend, whereupon the cause was tried and a decree of foreclosure in the usual form was rendered for plaintiff. From this judgment defendant appealed.

The appellant contends that the mortgage is null and void, and therefore constituted no lien on the property. If it is *446 null and void, it is because it is illegal; and conceding for the purpose of this case that the defendant can set up such defense, we proceed to inquire into the contention above stated.

Is the mortgage null and void ? The mortgaged premises were the homestead of the defendant and her husband, Peter Been, regularly declared and constituted as such in August, 1860, under the act of the Legislature of that year, approved April 28th, 1860, amending the act of 1851. (Stats. 1860, 311.) By the fourth section of the act of 1860, amending the tenth section of the act of 1851, it was provided that on the death of the husband or wife, the homestead shall be set apart by the Probate Court for the benefit of the surviving husband or wife and his or her legitimate children. In 1862, another act was passed, amendingthe act of 1860 (Stats, of 1862,319), and the fourth section of the latter act was amended by the fourth section of the act of 1862, so as to read as follows:

By this amendment the estate of the surviving husband or wife was enlarged so as to vest in the survivor, on the death of either spouse, the title to the homestead, absolutely, to be held by the survivor “ as fully and amply as the same was held” by the spouses, or either of them, immediately preceding the death of the deceased spouse.

The second section of the act of 1860 allowed a mortgage to be executed in a mode prescribed by that section. This section was also amended by the second section of the act of 1862, permitting a mortgage to be executed in a mode somewhat different from that enacted by the second section of the act of 1860. But under the provisions of both acts the spouses were to co-operate. After the death of either *447 spouse, it seems that under the act of 1860 the power to mortgage was gone, as the children, under that act, took an interest on the occurence of the death of either husband or wife.

Then came the act of 1862, by the fourth section of which the homestead vested absolutely, as we have seen, in the survivor, to be held by such survivor as fully and amply as held by husband and wife, or either of them, immediately before the death of the decedent, and this, as we construe it, gave to the survivor the right to mortgage the homestead given by the first section of the act of 1862, amending the second section of the act of 1860. If this was not so, the survivor would not hold the homestead absolutely, as fully and amply as the same was held by them or either of them under the act of 1860, and the object of the act would be defeated. The Legislature, no doubt, deemed the power to mortgage given by the acts in relation to homesteads proper and beneficent under the circumstances which might occur, and therefore left it to the joint will of husband and wife, during the existence of the coverture, to execute such instrument if they thought proper so to do. After the coverture ended, the act of 1860 did not allow the power, but the Legislature, considering it still as proper and beneficent after death had determined the marriage relation, vested it in the survivor, to be exercised according to his or her discretion. This we consider a fair deduction from the whole act taken together. No doubt it was seen that it might become absolutely necessary for the survivor to raise money by mortgage for the relief of the family, and for this reason the power was given. We therefore consider the mortgage executed by the defendant a valid one, unless otherwise for the reasons urged by appellant.

Now it is said the act of 1862 did not affect homesteads declared under the act of 1860, that it was not, and did not purport to be, retroactive.

It was held in Rich v. Tubbs, 41 Cal. 34 , where the effect of the act of 1862 on homesteads declared under the-act of 1860 was the very point in judgment, that 'under the fourth section of the act of 1860, the surviving children took an interest in the homestead on the death of either husband or wife, and took no interest before; that since the passage of the act *448 of 1862 the children surviving on the death of either spouse took no interest, but the same vested absolutely in the survivor. It is true that in this case it did not appear when the deceased spouse died, but the Court said that the above was the law under the act of 1860, unless he died before the act of 1862 took effect. Some criticism is made by counsel upon the language of the Court in this case, in speaking of the right which passed to the children under the act of 1860 as an inheritance, but it makes no difference as to the use of this expression. The conclusion reached by the Court was correct, whether it was technically an inheritance or not, and it interfered with no vested right. In this ease the homestead was declared by Tubbs and wife in 1861, under the act of 1860 ( 41 Cal. 34 ), and as we have said above, the point was directly in judgment, and was decided, we think, correctly. In the case before us Been and wife, as we have stated, declared their homestead in 1860, under the act of that year, and Been, the husband, died in 1865. So the doctrine of Rich v. Tubbs applies. (See Matter of the Estate of Delaney, 37 Cal. 181 , where the same rule was declared in a controversy between the surviving wife and one of the children.) Nor is the act of 1862 retroactive. It had no effect in this case under the rule of Rich v. Tubbs , until the death' of Reen occurred, and that was in 1865.

It is urged that the acts of 1860 and 1862 are not statutes of descent, and that the legislature was powerless to destroy or change the tenures of the estates of persons obtained by homestead declarations under any or all of the acts.

But we have seen that no rights vested in the children under the act of 1860, until the death of one of the spouses, and therefore no change was made in their estate or rights, nor were they destroyed. Estate of Headen, 52 Cal. 297 , cited by counsel, does not change the rule in Rich v. Tubbs . It is so stated in the opinion of the Court, which was drawn up by the same learned Justice (Rhodes) who drew up the opinion in Rich v. Tubbs , id. 298-299. In the Estate of Headen it is held that the act of 1860 is a statute of descent, as applicable to property which had been appropriated as a homestead. The change in the law by the act of 1862 was made before any right vested in the children, and there *449 fore does not come within the constitutional inhibition adverted to.

As to the act of 1862 interfering with the right of defendant, we can not perceive that this position is tenable. It enlarges her right without destroying it. It enlarges her right by giving her the estate absolutely, to be held in the manner above stated, and it enlarged her right to dispose of it. Under these circumstances should she be heard to complain ?

The setting apart by the Probate Court of the premises as a homestead to the defendant did not change the nature or character of the title. (Rich v. Tubbs, 41 Cal. 34 .)

It is a serious question whether the defendant should be allowed to set up the defense she offers in this case. Is it not equivalent to allowing her to say that she has a title to the property mortgaged ? Ought she to be allowed to set up such a defense ? But this question we do not propose to decide, as the other questions passed on are decisive of the case.

Judgment affirmed.

Sharpstein, J., and Morrison, C. J., concurred.