two years, and that the mortgaged premises were the earnings of defendant while so living separate from her husband, and were her separate property. Judgment was entered foreclosing the mortgage, and from that judgment, and an order denying her a new trial, defendant appealed.

The only points made for a reversal are, that the court erred in not granting a nonsuit, and that the findings as to the defendant's living separate from her husband, and as to the mortgaged property being the earnings of defendant while so living, were not justified by the evidence.

1. It does not appear from the record that any grounds for the nonsuit were stated, and for that reason the first point cannot be sustained. It has long been settled that when a motion is made for a nonsuit without stating the grounds upon which it is made, it is not error to overrule the motion. (Kiler v. Kimbal, 10 Cal. 267; People v. Banvard, 27 Cal. 470; Sanchez v. Neary, 41 Cal. 485.)

2. There was testimony tending to show that the defendant had been living separate from her husband for nearly five years when the case was tried. It appeared that the parties were living together in Rocklin, Placer County, in April, 1883; that in that month he went away to Forest City, in Sierra County, and had ever since resided there; that she continued to live in Rocklin, and had kept boarders and done other work to support herself and children; that she had never visited him nor he her, though he had twice passed through Rocklin; that he had written several letters to her and the children, and had three or four times sent small sums of money to the children. He testified: "The immediate cause of my leaving Rocklin was domestic infelicity, and such infelicity has not been healed by reconciliation. I do not intend to resume intimate marital relations with my wife, but my intentions in that regard did not exist

on the 1st of January, 1885. It is only within the past six months that I fully determined in my own mind not to resume intimate marital relations with my wife again, but I have never ceased, nor do I intend to cease, performing my obligations to my family while I have strength to do so. I left my wife, and did not inform her when, if ever, I would return, and did not acquaint my wife about my future intentions as to living with her."

We think this shows a "separate" living within the meaning of section 169 of the Civil Code, and that the judg ment cannot be reversed on this ground.

3. The defendant testified that in September, 1884, she made a contract to purchase the mortgaged premises for $300, and that she paid the purchase price, and took a deed for the property in her own name on the 9th of January, 1885; that she borrowed $225 of the purchasemoney, and made the balance by keeping boarders; that she executed the note and mortgage in suit to secure payment of the $225 borrowed, and other money owing by her to the mortgagee.

Now, conceding that the borrowed money was community property, still it appears that a part of the purchase-money was the defendant's earnings and her separate estate. In Schuyler v. Broughton, 70 Cal. 282, it was held that real property purchased by a married woman in her own name, partly with money belonging to her separate funds, and partly with money borrowed by her for that purpose, becomes in part the separate property of the wife, and in part community property. In such a case, it was said the wife becomes a tenant in common of the land with her husband in the proportion that the separate funds paid by her bear to the whole purchase price. Under this rule, defendant owned at least a part of the mortgaged premises, and had a right to execute the mortgage.

This being so, whatever separate interest defendant has

in the property may be sold under the decree of foreclosure, and it does not lie in her mouth to object that the decree directs the sale of the whole property, and is therefore too broad.

We find no errors in the record, and advise that the judg ment and order be affirmed.

FOOTE, C., and HAYNE, C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment and order are affirmed.

[No. 11964. Department One.-May 22, 1889.]

MARGARET FARLEY ET AL., RESPONDENTS, v. PETER HOPKINS ET AL., APPELLANTS.

HOMESTEAD

EXECUTION SALE-TEMPORARY

INJUNCTION-DISPUTED FACTS. Upon an application for a temporary injunction to restrain a sheriff from selling a homestead under execution, if there is a dispute in the affidavits of the parties as to whether the homestead included the upper story of the building occupied as a homestead, it is not error for the trial court granting the temporary injunction to refuse to determine the disputed facts on the motion in anticipation of the final judgment.

ID. FILING DECLARATION OF HOMESTEAD-AGENCY.-The declaration of homestead need not be filed upon the day of its execution and acknowledgment; nor need it be filed by the declarant in person without the agency of others.

ID. DECLARATION BY WIFE-SUFFICIENCY OF STATEMENT.-It is sufficient in a declaration of homestead made by a wife to state that the husband has not made such declaration, and that she makes it for the joint benefit of herself and husband, without specifying in terms that she makes it for the reason that her husband has not made it.

APPEAL from an order of the Superior Court of the city and county of San Francisco granting a temporary injunction.

The facts are stated in the opinion.

A. P. Needles, and William Grant, for Appellants.

Stanly, Stoney & Hayes, for Respondents.

FOOTE, C.-This is an appeal from an order granting a temporary injunction restraining the defendants, among whom was Hopkins, the sheriff of the city and county of San Francisco, from selling under execution certain premises claimed by the plaintiffs as their homestead.

The prayer of the complaint is, that it may be decreed that the judgment under which the sheriff is about to sell the homestead is not and never was a lien upon the premises in dispute; that they are not subject to levy and sale under execution issued upon the judgment, and that the sheriff be enjoined from selling or offering for sale the premises, etc., and for such other equitable relief as may seem proper, etc.

The record shows that Margaret Farley and her husband, Thomas Farley, who are the plaintiffs here, were the defendants in the judgment above referred to, and that she, as the wife of Thomas Farley, made and acknowledged a declaration of homestead on the premises in question on the seventeenth day of October, 1884, and filed it for record on the next day through "Tobin and Tobin," presumably her attorneys or agents. This declaration contains, among other things, this statement:

"I make this declaration for the joint benefit of myself and husband, and I declare that my husband has not made a declaration of homestead."

It was claimed in the affidavits filed for the execution creditor, on the hearing of the motion to show cause why the temporary injunction should not be granted, that the upper story of a building on the premises was not a part of the homestead. The affidavit filed on the other side tended to some extent to dispute this alleged fact.

The defendants claim that the declaration of homestead is invalid, and that the homestead claim does not extend to the upper story of the building; that the injunction, if granted at all, should not have included it.

The objections are: 1. That the declaration of homestead was not filed until the day after it was acknowledged; 2. That it was not filed by the declarant in person, but by some one for her; 3. That she does not assign any reason whatever why she made it for the joint benefit of herself and her husband; 4. That a portion of the building upon the premises was not used by the family.

We perceive no error upon the part of the trial court in refusing to anticipate the final judgment, and to determine, on the motion and by the affidavits, whether or not the upper story of the building is a part of the homestead.

With reference to the first point, it may be disposed of by saying that there is nothing in the statute which declares that the filing for record must take place on the day of the declaration and its acknowledgment, and to give such a construction to the law would be in many instances practically to defeat it. (Civ. Code, sec. 1265.) The same thing may be said as to the point made that the declarant did not file the declaration in person, but obtained some one to do it for her.

The declaration states that the wife filed it for herself and husband, and that her husband had not made any declaration of a homestead. Section 1262 of the Civil Code reads as follows:

"In order to select a homestead, the husband or other head of a family, or in case the husband has not made such selection, the wife, must execute and acknowledge, in the same manner as a grant of real property is acknowledged, a declaration of homestead, and file the same for record."

Section 1263 prescribes that "the declaration of homestead must contain :

"1. A statement showing that the person making it is the head of a family; or, when the declaration is made by the wife, showing that her husband has not made such dec