I dissent. It appears by the finding of the Court below that prior to April 29, 1861, Francisco de la Guerra and Concepcion, his wife, resided upon the premises in dispute, having the same inclosed; and, being thus in possession of the land as the family residence, the wife, on that day, for the purpose of securing to herself and family the benefit of the homestead law which was t then in force, filed in due form a declaration of ■ homestead, by which she selected and claimed the premises as a homestead. But the only title to the land was the title of the husband, Francisco, and that he held as a tenant in common with his brothers, as heirs-at-law or devisees of their deceased father, Jose de la Guerra y Noriega, who had died seised and possessed of the Simi Ranch, of which the homestead premises formed a part; and the Supreme Court in a number of cases had decided that under the homestead law, as it existed at the time of filing the declaration by the wife of Francisco, a homestead could not be carved out of land held in joint tenancy or by tenancy in common. The homestead claim of the defendants was, therefore, under those decisions invalid.
But, after the rendition of those decisions, the Legislature of the State, by an Act entitled “An Act relating to Home*115steads,” approved March 9,1868, enacted that persons residing upon and in the exclusive occupation of an inclosed tract of land which had been selected by them, and recorded as a homestead, were entitled to hold it as a homestead to the extent of their interest in the land, whether their interest was that of a joint tenant or tenant in common, or any other undivided interest. And the provisions of the statute were, by its terms, made applicable to all homesteads recorded before the passage of the Act, under pre-existing statutes—provided, that the rights of persons to said land who had actions pending in any of the courts of this State were not to be affected by any of the provisions of the Act. (Sections 1 and 2, Act of 1868, p. 116.)
At the time of the passage of that Act the homestead claimants resided upon and claimed the premises as their homestead. No proceedings were pending ■ affecting the land in any of the Courts of the State. The Act of 1868, therefore, covered and validated the homestead claim of the defendants. But before the passage of the Act of 1868, Francisco and the other heirs-at-law of Noriega had mortgaged their interests in the Simi Ranch to secure an indebtedness to one Cook, who, in 1864, had acquired title to the mortgage premises at a sale under the decree of foreclosure. But the homestead claim of the defendants was never challenged or disturbed by that title. On the contrary, the claimants continued in adverse possession of the premises, claiming their homestead therein. And, in January, 1873, they acquired the title by purchase from the grantee of Cook. The acquisition of that title certainly did not invalidate the homestead right if it existed under the statute of 1868. It did exist under that statute, because it did not depend upon the character of the title held by the party claiming it, but was valid to the extent of the interest which the claimants had in the land, although that interest was nothing more than possession (Spencer v. Geissman, 37 Cal. 96); and the acquisition of the outstanding title to the land, instead of weakening the right, strengthened and confirmed it
As, therefore, there was a valid subsisting homestead right before and after the acquisition of the Cook title to the homo-*116stead premises, it was not subject to the mortgages executed in 1875 and 1876, under which the plaintiffs in the case claim title. I am, therefore, of the opinion that the judgment of the Court below should be affirmed.