Rider

Action to foreclose a mortgage executed by defendant Began to secure payment of his promissory note, made payable to plaintiff or order, for the sum of fifteen hundred dollars, with interest thereon at the rate of eight per cent per annum.

The defendants, Edward and Mary Kelly, are husband and wife, and were made parties defendant, on the ground that they claimed some interest in or lien upon the mortgaged premises, which consist of a lot of land thirty-five by eighty feet, with appurtenances, situated in the city of San Francisco.

Edward Kelly alone, by his guardian ad litem (he being insane), answered plaintiff's complaint, denying that defendant Began ever owned or had any authority to mortgage the lot, and alleging that, at the time the mortgage was executed, he (Kelly) was, and ever since had been, sole owner of the mortgaged premises. He also filed a cross-complaint, the substance of which is: That in October, 1887, while he and defendant Mary C. Kelly were husband and wife, he purchased the mortgaged lot with money earned by him during the marriage, and that it thereby became community property of himself and wife; that in June, 1880, while he with his wife and family…

I dissent, under the conviction that the act in question is unconstitutional. Section 1 of that act is as follows: “In case of a homestead, if either the husband or the wife shall become-hopelessly insane, upon application of the husband or wife not insane to the probate court of the county in which said homestead is situated, and upon due proof' of such insanity, the court may make an order permitting the husband or wife not insane to sell or convey or mortgage such homestead.”

Section 2 provides for publication and service of notice of the application.

Section 3 makes necessary the filing of a petition, and prescribes what it shall contain.

Section 4 declares that if the court shall make the order contemplated by section 1, the same shall be entered upon the minutes, and thereafter any sale, conveyance, or mortgage made in pursuance of such order *677 •shall be as valid and effectual as if the property affected thereby was the absolute property of the person making such sale, conveyance, or mortgage in fee simple.

It is first to be noted that the statute is applicable, not to any particular class or kind of homesteads, but to all homesteads, whether declared upon community…