Dickey

This is an action to foreclose a mortgage. Plaintiff had judgment of foreclosure, and Crecencia Gibson, as executrix, appeals.

The contention of the appellant is, that a portion of the mortgaged premises were, and are, the homestead of said appellant and of Samuel Gibson, her testator, and that, as to such homestead, the mortgage of the plaintiff and respondent herein never was, and is not now, a lien thereon.

The following facts will serve to illustrate the contention:

In April, 1875, Samuel Gibson was the owner of all the land described in the mortgage herein, and resided thereon with his then wife, Guadalupe Gibson, and their two minor children. The land was the separate *29 property of said Samuel Gibson, acquired by him before marriage.

On the sixteenth day of April, 1875, and while so residing thereon, the said Gibson and his said wife made, executed, acknowledged, and filed for record, in due form, in the county of Stanislaus, where said land is situate, their declaration of homestead upon all of said land, the value of which was, and is, less than $5,000. Subsequently, and during the life of said wife, said Samuel Gibson and Guadalupe Gibson, his wife, sold and…