Duncan

This is an action to foreclose a mortgage executed by the defendants F. M. Curry and his wife, A. V. Curry. Judgment was rendered in the court below foreclosing the mortgage as against both defendants; and the defendants appeal from the judgment, and particularly from that part of it which decrees that the Ren of the mortgage is paramount to a certain homestead right set up in the answer.

On the twenty-fourth day of November, 1894, the appellants, husband and. wife, executed the mortgage in question, which, however, was never recorded. On December 14, 1895, the appellant A. V. Curry, the wife, duly executed a declaration of homestead upon the mortgaged premises, which was on said day duly recorded; and it was contended by appellants that this declaration of homestead defeats the mortgage lien. It is true that the homestead is exempt from forced sale except in the instances enumerated in the four subdivisions of section 1241 of the Civil Code. But subdivision 3 of that section is as follows: “On debts secured by mortgages -on the premises, executed and acknowl *107 edged by the husband and wife, or by an unmarried claimant”; and, of course, the case at bar is clearly within the…