Edwards

The defendant, Gerard Grand, executed a mortgage to the plaintiff November 22, 1892, and on the same day his wife, Maria Jesus Grand, made a declaration of homestead upon a portion of the mortgaged premises. The present action against both husband and wife for the foreclosure of the mortgage is resisted by the wife upon the ground that, to the extent that the mortgaged premises are covered by the declaration of homestead, the mortgage is invalid, for the reason that she did not unite in its execution. The facts relating thereto are as follows: On the day that the mortgage was executed the agent of the plaintiff took it to the office of the county recorder for record a few minutes after 5 o’clock in the afternoon, and, *256 as the statute only required the office to be kept open until o’clock, he delivered it to the recorder with the request that he-would record it the first thing on opening the office on the next morning, and it was thereupon received by the recorder and left in his office. On the next morning a little before 9 o’clock, while the recorder was on his way to the office, the declaration of homestead was handed to him, with the request that he would record it the…