Field, C. J. delivered the opinion of the Court—Cope, J. concurring.
This is an action for the foreclosure of a mortgage executed by Davis and wife to the plaintiff and one Thomas, to secure the payment of the promissory note of Davis for the sum of $10,000, and *193interest thereon. The premises are situated in Alameda county, and at one period had been occupied by Davis and wife as their homestead. The mortgage bears date the fifth of November, 1860, and at that time Davis and wife occupied a rented cottage in San Francisco; and Davis, whilst negotiating the loan for which the mortgage was given, represented that his family resided in San Francisco, and that he only visited the premises in Alameda to see to his business. The mortgagees, however, for greater protection, took from the parties a written declaration of them abandonment of all claim to the premises as a homestead, duly acknowledged by both—the acknowledgment of the wife being taken separately and apart from her husband. The declaration bears date on the thirty-first of October, 1860, but was acknowledged and delivered to the mortgagees in connection with the mortgage. Both were recorded at the same time—on the eighth of November, 1860. Subsequently, in March, 1861, Mrs. Davis filed a declaration, claiming the entire mortgaged premises as a homestead, under the Act of 1860. In November following, Davis himself filed a similar claim to a portion of the premises.
• The defense to the foreclosure is, that the premises, notwithstanding the declaration of abandonment, constituted the homestead of the parties until the declaration was recorded; and that the mortgage, having been executed- before such record was made, is invalid and void. The Court below held that the record of the declaration was essential to its efficacy as an abandonment of the homestead claim; but as it appeared the mortgaged premises exceeded in value the amount of the exemption allowed by law, it directed, upon the report of appraisers appointed for that purpose, a portion of the premises to be set apart to the parties as a homestead, and decreed a sale of the remainder. From the decree both parties appeal—the plaintiff objecting that the homestead claim was allowed against his mortgage, and the defendants objecting that the mortgage was held valid for any purpose.
In considering the question thus presented as to the efficacy of the mortgage, we shall assmne that the premises constituted, at the time of its execution, the homestead of the mortgagors. We shall not stop to notice the testimony, which creates some doubt on this point, or *194the equivocal language of Davis as to his residence in San Francisco, used at a time when to be frank was simply to be honest. Assuming that they constituted a homestead, they became so by the residence of the mortgagors thereon, under the Act of 1851. That act does not declare what shall be deemed an appropriation of premises as a homestead, or what shall be deemed an abandonment. These matters were left to judicial determination upon the circumstances presented in each particular case. And the Courts held that occupancy of the premises by the husband with his family was presumptive evidence of such appropriation; and the logical consequence followed, that removal from the premises was "held presumptive evidence of their abandonment as a homestead. (Forbes v. Harper, 15 Cal. 202.) The amendatory Act of 1860 changes this, and declares, as to homesteads subsequently acquired, that the appropriation shall be made by a declaration in writing, signed and acknowledged by the parties, and recorded, as conveyances are required to be acknowledged and recorded; and also, that an abandonment shall be made by a like declaration, signed, acknowledged and recorded in the same office with the original declaration claiming the premises. The provision as to the record of the declaration of abandonment, as will be thus seen, supposes that a declarar tion of claim has been also recorded ; and this circumstance must be borne in mind in the construction of the fifth section of the Act of 1860. That section enacts, that ah parties entitled to homesteads under the original Act of 1851, shall be entitled to the benefits of the amendatory Act; but, as we construe it, not absolutely without any further proceedings on their part, but as parties holding under the amendatory Act are entitled—by filing a written declaration claiming the premises. The proviso following, which is to be read in connection with the clause in question, supposes such declaration is to be made ; it does not provide that the declaration shall be made, but assuming that it is to be made, it extends to the parties the privilege of making it for one year, and without alleging an actual residence at the time, in case there has been a temporary abandonment. And in the same manner we read the last clause of the first paragraph in connection with the proviso. Homesteads acquired under the Act of 1851 shall be protected to the same ex*195tent and in the same manner as if acquired under the amendatory Act—not absolutely, without any action on the part of the parties, but upon them filing a written declaration claiming the premises ; for if no declaration, says the same section, be filed within one year, the homestead shall be deemed to have been abandoned. The whole paragraph, in other words, read with what follows, amounts to this: that parties having homesteads under the Act of 1851 shall be entitled—that is, shall have the right—to take the benefits of the provisions of the new act, and to claim them protection upon complying with its requirements. It is not the intention of the latter act to compel parties, against them consent, to accept of its benefits or submit to its restrictions, but to extend to them the privilege to do so, if they choose. ETor is it the intention to qualify or impair in any manner the rights which parties may hold under the original act; but, on the contrary, to secure their rights, as they existed under its provisions, until an election is made to accept of the conditions of the new act or to abandon the homestead, for which purpose the parties are allowed one year—a period which, by a subsequent act, has been still further extended. This construction removes many inconsistencies in the very awkwardly drawn Act of 1860, and also objections which might be otherwise urged to the constitutionality of some of its provisions. The act changes the estate of the parties into a joint tenancy; but, according to our view, only upon their consent, evidenced by them declaration claiming the benefits of the act. It maybe questioned whether it is within the legislative power to thus change the estate of the parties without such .consent. (Dewey v. Lambier, 7 Cal. 347.) The act also requires a record of the declaration of abandonment to be filed, as we have stated, in the same office with the original declaration of claim—a thing impossible, if no such original declaration has ever been made. Construed as only applying to cases where a declaration of claim has been filed, -the act affords protection to the honest man, and prevents the perpetration of gross frauds, such as has been attempted in the present case. In our judgment, the homestead rights of Davis and wife are to be determined by the Act of 1851, until the declaration claiming the premises as a homestead was filed for record in 1861, and not by the Act of 1860. The mortgage in controversy, therefore, exe*196cuted upon the homestead by both husband and wife before such declaration was made, is valid, and binding upon the premises.
The conclusion to which we have thus arrived upon the principal question presented, renders it unnecessary to notice the minor objections urged to the decree by the defendants. The decree must be reversed, and the Court below directed to enter a decree in the usual form for the sale of the entire mortgaged premises.
Ordered accordingly.