Action to foreclose a mortgage executed by defendant to secure his promissory note for two thousand dollars made to his wife, Mrs. M. E. McClure, and by her assigned to the plaintiff, who is the son of defendant and his said wife.

The only defense upon which any point made here is that there was no consideration for the note or mortgage.

The judgment was in favor of the plaintiff, and defendant appeals from the judgment and from an order denying his motion for a new trial.

It is contended by counsel for appellant that the evidence does not justify the finding by the court, that *340 there was “a valuable- and adequate consideration” for the execution of the note and mortgage.

The making of the note and mortgage was one of the results of a compromise of pending lawsuits between defendant and his wife.

On April 5, 1887, defendant and wife with minor children were residing on the mortgaged premises, which were then community property of the husband and wife, but had not been selected or recorded as a homestead by either. On that day, on account of some difference between them, the defendant angrily ordered his wife to leave their home. Thereupon they divided their household furniture and provisions of food, and she left her house and went to a house which she leased about a mile from the mortgaged premises, saying then, and often afterwards, that she intended never to return to or to live with her husband; and she never did. About three weeks after thus leaving, she made and filed her declaration of homestead on the mortgaged premises containing among other things the following: “I do now, at the time of making this declaration, actually reside with my husband and family on the land, but am temporarily abiding off said land and premises.”

On October 15, 1887, the defendant commenced an action against his wife to quiet his title against her claim of homestead, and to annul her recorded declaration thereof, as a cloud upon his title, on the ground that she was not residing on the land at the time said declaration was made and recorded.

On July 3,1888, the defendant commenced another action against his wife for a divorce, on the alleged ground of her willful desertion. To this complaint she answered, denying that she had willfully deserted, etc., and also filed a cross-complaint praying for a divorce from her husband, but upon what ground does not appear.

On December 19, 1888, the divorce case was called for trial, when the attorney for the plaintiff therein asked for a recess for the purpose of effecting a compromise of the matters of difference between uthe parties, which *341 was granted. During the recess the terms of a compromise of the action and cross-action for divorce and the action to annul the declaration of homestead were agreed upon, and were entered in the minutes of the court in connection with the dismissal of those actions as follows:

The defendant testified that he agreed to this compromise reluctantly, but "was induced to do so by the advice of his attorneys. Mr. Crump, the attorney for the wife in the divorce suit, testified that Mr. Fishback, attorney for the husband in that suit, drew all the papers relating to the compromise in such form as he desired, and that he thinks they were all executed at *342 the time the note and mortgage were executed; and there is no evidence to the contrary. Nor is there any evidence that the wife had not fully performed her part of the compromise agreement before this action was commenced; though it is contended that the mode adopted by Mr. Fishback to divest her of her alleged homestead right was not effectual. The mode adopted was a conveyance by the wife to the husband of all her rights and interest in the community property, including the homestead. It is claimed that her homestead right (if she had any such right) could have been divested or abandoned only by the joint act of herself and husband in the mode provided by sections 1243 and 1244 of the Civil Code; and upon this alone depends defendant’s contention that there was no consideration for the note and mortgage.

It is unnecessary to determine what was the effect of the wife’s declaration of homestead, made and recorded under the circumstances above stated; nor is it necessary to determine what effect her conveyance to her husband of all her right to community property had upon her disputed right to a homestead. It is not questioned, nor is it questionable, that the compromise agreement was a sufficient consideration for the note and mortgage while it remained unrescinded, and after its terms had been performed on the part of the wife, in the mode dictated by the husband through his learned attorneys, it not appearing that she was ever requested to perform, or refused to perform, in any other mode. Besides, she could not have abandoned the homestead in the mode prescribed by the code without the concurrent abandonment thereof by her husband; nor, if the agreement required her to abandon in that mode, could she have been put in default without the offer of the husband to join her in the act. While the compromise agreement subsisted as a valid contract it remained a valid consideration for the note and mortgage, whether fully performed by the wife or not. Doctor Wharton, in his work on Contracts, section 633, says:

In this case there is no pretense of fraud or imposition, nor is it pretended that the compromised suits were not brought and defended bona fide.

It is further to be observed that Mrs. McClure died on January 31, 1890, two days after having assigned the note and mortgage to the plaintiff, who had assisted in supporting her after her separation from her husband. It would seem that her death, under the circumstances, relieved defendant’s title from any cloud caused by her declaration of homestead, though this question is not necessarily involved, and need not be decided.

I think the judgment and order should be affirmed.

Searls, C., and Belcher, C., concurred.

For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

Harrison, J., Paterson, J., Garoutte, J.