Elias

This is an action to foreclose a mortgage executed by the defendant, Julio Verdugo on the 6th of December, 1860, to secure his promissory note to the plaintiff *334 of that date. The property covered by the mortgage is known as the “Rancho San Rafael,” situate in the county of Los Angeles, and came to Verdugo and his sister Catalina by descent, on the death of their father in 1832. It was claimed by the plaintiff at the trial that Julio and Catalina continued to own the property as tenants in common at the date of the mortgage, and therefore that the lien imposed by it was upon one-half of the estate undivided. It was claimed by the defendants, however, that there was a parol partition of the rancho in 1832, whereby the south half was set off to Julio Verdugo and the north half to Catalina, and that the occupation of the respective portions had ever since conformed to the division so made. A homestead right in the southern half was also set up by the defendants in opposition to the mortgage. The case was tried by the court and the findings on both points were in favor of the defendants.

It may be admitted for the purposes of argument, and it could not be admitted without…