—This is an appeal from an order after final judgment.refusing a writ of assistance.
Robert Chalmers in his lifetime executed a mortgage upon certain premises in El Dorado.County; subsequently his wife Louisa declared a homestead upon a portion of the same premises.
Chalmers.departed this life, and an action to foreclose the mortgage was brought against the executor and executrix of his last will, viz., against George Chalmers and Louisa M. Chalmers, as executor and executrix thereof.
Louisa Chalmers, the widow, was made a party defendant as executrix, but not in her individual capacity.
The executor and executrix set up the fact of the declaration of homestead by the latter, and the court found the existence of the homestead as a fact, and that it was subsequent in time and subject to the lien of the mortgage.
A decree was entered in favor of plaintiff, under which *334the property was sold, purchased by plaintiff, and a sheriff’s deed having passed, possession was demanded of Louisa M. Chalmers (who had before that time intermarried with one Hardie), pursuant to a clause in the decree requiring possession to be delivered to the purchaser, which was refused, whereupon plaintiff applied for a writ of assistance.
' The court below denied the writ upon the grounds that Mrs. Chalmers was not. individually a party to the foreclosure suit, and was not made such, or concluded by the answer made in her representative capacity, setting up the homestead, or by the decree rendered therein.
It is well settled that a judgment for or against a party in one right cannot affect him when acting in another right. Thus a plaintiff suing as administrator of his wife is not affected by a judgment against himself, in her lifetime, in an action to which she was not a party. (Blahey v. Newby, 6 Munf. 64.) “A decree against one as administrator, on a bill to compel the delivery of slaves claimed as a gift from the intestate, will not conclude his rights as a creditor, on a bill by him against the former plaintiffs, to set aside the gift conveyance for fraud.’’ (Freeman on Judgments, sec. 156, and cases cited.)
Louisa Chalmers was sued as the executrix of the last will of her deceased husband; as such she could only avail herself of such defenses to the foreclosure suit as would have existed in favor of her testator had he been living and a party to the action; and had he been living and a party defendant he could not have concluded by a defense or want thereof his wife’s right to the homestead. Such result could only be reached, if by action, in a proceeding to which she was a party. (Revalk v. Kraemer, 8 Cal. 65; 68 Am. Dec. 308; Revalk v. Kraemer, 8 Cal. 75; Van Renegan v. Revalk, 8 Cal. 76; Cook v. Klink, 8 Cal. 347; Stoops v. Woods, 45 Cal. 439.)
It is true a party may be before the court in two or more capacities, and in Corcoran v. Chesapeake Canal *335Co., 94 U. S. 741, an individual, as trustee for certain bondholders, was brought before the court and a decree rendered against him as such, and it was held he could not relitigate the same matter on the ground that he was himself a bondholder of some of the bonds. If he was such holder, it was said he was bound by the former decree, because as trustee in the former suit he was representing himself. That, however, is not this case. Louisa Chalmers, as executrix, represented the estate of her deceased husband, and the decree rendered is binding upon such estate; but her right in the homestead, if taken from the community property of herself and husband, vested absolutely in her upon the death of the latter, and as executrix she could not represent it.
But it is claimed that defendant did, in effect, make herself individually a party to the action, by setting up the homestead right when sued as executrix.
The code specifies but two methods by which, after the commencement of an action, new parties may be brought in; one is by an order of the court and the other by complaint of intervention. No such order was made or proceedings had in this case; hence we conclude she was not individually a party to the cause.
It may well be that a party who voluntarily files an answer in a cause without an order of court making him a party defendant, and who goes to trial upon the issues made by his answer to the complaint, will be concluded by the judgment rendered on the trial of such issues, and estopped from denying that he was a party to the action. But in the present case we search the decree in vain for any adjudication of defendant’s homestead rights.
■ The conclusion reached by the court below was “that Mrs. Chalmers, now Mrs. Hardie, never was a party to this action, .and therefore the judgment and decree do not affect her homestead right, and being in possession under the homestead right, she is rightfully in possession.”
*336We are of opinion this conclusion was warranted by the premises, and the order denying the writ is affirmed.
Sharpstein, J., McFarland, J., Temple, J., Thornton, J., and McKinstry, J., concurred.