Opinion
Appeal from the Superior Court of the City of San Francisco.
This was an action in the Court below for the foreclosure of a mortgage upon certain premises in the city of San Francisco, executed by defendant, Bunnell.
Bunnell answered, and thereon set up that at the date of the execution of the mortgage, he was a married man, and that the mortgaged premises were subject to his homestead right. On the trial of the cause, the Court sent a number of special issues to the jury, who answered them as follows:
1. The jury find the amount due on the mortgage to be one thousand eight hundred and forty-five dollars, and that it is dated Oct. 21, 1854.
2. The mortgagor was a married man at the time of the execution of the mortgage, and that his wife was not then in the State.
3. The mortgaged premises were the home of the mortgagor. He had no other home at the date of the mortgage, and has no other now.
4. The mortgaged premises are not worth the sum of five thousand dollars.
5. That the mortgagor, Bunnell, sent for his wife in the spring of 1854, and she arrived here in December, 1854.
The Court afterwards rendered a decree, declaring the mortgage to be valid, and the premises exempt from sale thereunder, and giving plaintiff a personal judgment against the defendant, Bunnell, for the amount of the mortgage indebtedness.
Plaintiff moved for a new trial, which being denied, he appealed to this Court, from that part of the decree declaring the mortgage invalid, and exempting the property from sale thereunder.
COUNSEL:
L. Aldrich, for Appellant.
J. P. Treadwell, for Respondent.
JUDGES: Burnett, J., delivered the opinion of the Court. Murray, C. J., concurring.
OPINION
BURNETT, Judge
The defendant executed a note and mortgage to plaintiff. At the date of the note and mortgage, the defendant was a married man, but his wife was not then a resident of this State.
The only question in this case was settled in the case of Cary v. Tice and wife, decided at the last term of this Court. " The premises never were impressed with the character of a homestead until actual residence upon them by the family."
So much of the judgment of the Court below as is appealed from is reversed, and that Court will enter judgment in accordance with this opinion.