Powell

Action to foreclose a mortgage. Plaintiff had judgment, and'defendant appeals.

It appears that on the second day of October, 1877, the defendant, Henry Patison, was the owner and resided with his family on the premises in question; that on that day his wife, the defendant, Emma J. Patison, declared a homestead thereon, and that they continued to actually occupy the same up to the twenty-ninth day of August, 1887, and that the homestead so declared has never been abandoned; that on September 26,1884, the defendant, Henry Patison, made his promissory note to plaintiff for one thousand dollars, and to secure the payment thereof he mortgaged to plaintiff the homestead oremises; that on the 29th of August, 1887, the defendant, Henry Patison, obtained a divorce from his wife, the said Emma J. Patison, and the homestead premises were by the judgment assigned to him.

It is claimed by appellant that the court erred in decreeing a foreclosure of the mortgage, for the reason that when the mortgage was executed by the husband there was a valid and subsisting homestead on the premises sought to be mortgaged. Section 1242 of the Civil Code provides that “the homestead of a married person…