Roth

I concur in the judgment. The declaration of homestead in this case did not show that the claimant was the head of a family. It merely stated that he was, at the date of the declaration, actually residing on the premises with his mother, and altogether fails to state that she was under his care and maintenance, a condition made essential by the statute. (Civ. Code, sec. ,1261, subd. 2.) But it was a good declaration for any person other than the head of a family (Civ. Code, secs. 1266-1269), and sufficient to secure a homestead right of exemption to the extent of one thousand dollars. (Civ. Code, sec. 1260.) Such being the case, the homestead could not be sold under execution upon a judgment other than one of those enumerated in section 1241 of the Civil Code, without taking the steps prescribed in section 1245 et seq. For these reasons the injunction was proper. The question is not necessarily involved in this appeal, and cannot be decided here, but I think it ought not to be intimated that the homestead of the head of a family remains exempt in his hands to any greater extent than one thousand dollars, after he has ceased to be the head of a family.

This appeal is taken from an order refusing to dissolve an injunction. The defendants had caused an execution to be levied upon the homestead of the plaintiff, issued under a judgment obtained against him in a justice’s court by one H. C. Howard. It is charged in the complaint that the defendant Insley, as constable, has levied upon the property, and is about to sell it under execution, and that the defendant Montgomery applied to the justice of the peace and had the execution issued'without authority; that Insley has been duly notified that the property he has levied upon and advertised for sale is the homestead of the plaintiff, and exempt from execution; but that nevertheless the defendants are about to, and unless restrained by the superior court “ will, sell plaintiff’s said homestead property at forced sale to satisfy said judgment.” It is further stated that the sale contemplated would cast a cloud upon the plaintiff’s title to the property, and “ would irreparably injure and disturb plaintiff in the quiet enjoyment of said premises, and that plaintiff has no speedy and adequate remedy at law.”

The court below granted a temporary injunction as prayed for. A motion was then…