Stevens

This is an action for the reformation of a mortgage executed to plaintiff by the defendants, Holman and wife, and to foreclose the same. Judgment went for plaintiff, and defendants appeal from the judgment—bringing up the judgment-roll alone.

Respondent had a former note and mortgage from appellants; and appellants, desiring further time, agreed to give a new note and a mortgage to secure it covering certain described land. Respondent consented; whereupon the old note and mortgage were canceled, and the note and mortgage now in suit were given. But the description in the new mortgage did not include all the *349 land which appellants had agreed to mortgage. Respondent supposed that the description did include all such land, and accepted the mortgage under the mistaken notion that he was thereby getting a lien upon all the land which appellants had promised to mortgage. Appellants knew that the description did not embrace all said land; but they, and each of them, “ knew that plaintiff believed that the mortgage, as executed by them to him, did include all the land they, and each of them, had agreed to mortgage as aforesaid, and that plaintiff was deceived in so believing, and…

dissenting.—I dissent. The mortgage in question here was executed February 9, 1889, long before the provisions of the code requiring conveyances of married women to be executed in a special mode were repealed. The complaint charges that certain parts of the homestead which defendant had agreed to mortgage were omitted by mutual mistake. Defendants dénied that they ever made such promise, and that *353 there was any mistake. The court found that plaintiff supposed that the mortgage was to include the entire homestead, and that defendants knew that such was bis understanding, but they knew that it did not include the homestead, and did not intend that it should.

In other words, the wife signed and acknowledged the mortgage, after having it explained to her that it did not cover the entire homestead, and would not have executed it if it had included it, and now, on a finding that her husband practiced a fraud upon plaintiff, the court is asked to hold that she did execute such a mortgage, and acknowledged that she did so freely and voluntarily, and that, after being made acquainted with its contents she did not wish to retract the execution of the same.

To my mind the mere…