dissenting.—I dissent. The mortgage in question here was executed February 9, 1889, long before the provisions of the code requiring conveyances of married women to be executed in a special mode were repealed. The complaint charges that certain parts of the homestead which defendant had agreed to mortgage were omitted by mutual mistake. Defendants dénied that they ever made such promise, and that *353there was any mistake. The court found that plaintiff supposed that the mortgage was to include the entire homestead, and that defendants knew that such was bis understanding, but they knew that it did not include the homestead, and did not intend that it should.
In other words, the wife signed and acknowledged the mortgage, after having it explained to her that it did not cover the entire homestead, and would not have executed it if it had included it, and now, on a finding that her husband practiced a fraud upon plaintiff, the court is asked to hold that she did execute such a mortgage, and acknowledged that she did so freely and voluntarily, and that, after being made acquainted with its contents she did not wish to retract the execution of the same.
To my mind the mere statement has the force of a demonstration, but the identical question was settled by this court in Leonis v. Lazzarovich, 55 Cal. 52. This decision has been frequently affirmed by this court.
The finding that the defendants promised and agreed to mortgage to plaintiff the entire homestead is not supported by the evidence. Ho such agreement could be made except by an instrument signed and acknowledged by both husband and wife.
The action is really to enforce specific performance of a paroi contract to give a mortgage upon the homestead. To so decree is, in my opinion, to violate the law.