The plaintiff's evidence was properly admitted. (12 Johns. 214.) Defendant is estopped by his mortgage from denying ittle in himself, and from setting up title in a third person. (15 Wend. 617; 3 Comyn, 534; Tillinghast on Eject. p. 32; 18 Johns. 7.) Defendant's liability accrued before the passage of the Homestead Act. Defendant failedto notify the Sheriff of his intention to claim a homestead, as required by the third section of the Act. (Acts of 1851, p. 297.)
JUDGES: Mr. Justice Heydenfeldt delivered the opinion of the Court. Mr. Ch. J. Murray concurred.
OPINION
HEYDENFELDT, Judge
The plaintiff claims under a Sheriff's sale. The execution was upon a decree of foreclosure of a mortgage, executed and given by the defendant. He is therefore estopped from setting up the defenses attempted in this case. So we decided in the case of Tartar v. Hall , 3 Cal. 263.
Judgment affirmed.