such petition is filed, so as to permit the admission of a nonresident attorney for the purposes of the case (and that is the full extent to which he can be admitted). In other words, no permission can be given by the court to a nonresident attorney to institute the proceeding.

It is argued that inasmuch as counsel for defendants in error filed a motion for an extension of time within which to file and serve a brief in the case that they waived their right to move for a dismissal of the proceedings in error. The motion for an extension of time to file brief was filed the same day as the motion to dismiss, and was made expressly subject to the ruling on the latter motion. Even if that had not been done it is well settled that jurisdiction of the subject matter of an action cannot be conferred by agreement, or waiver. There being no sufficient petition in error filed in the case, there is nothing requiring or authorizing the court to consider or determine the alleged errors of the trial court. The motion of defendants in error to dismiss the proceedings in error will have to be granted and the proceedings in error dismissed; and it is so ordered. Dismissed.

POTTER, J., and BLYDENBURGH, J., concur.

BACHMAN v. HURTT.

(No. 912; Decided Oct. 27, 1919; 184 Pac. 709.) HOMESTEAD EXEMPTION OF SEPARATE PROPERTY OF WIFE-EVIDENCE -PAROL EVIDENCE OF PURPOSE OF MORTGAGE ADMISSIBLE-MORTGAGES-RENEWAL OF MORTGAGE AS EXTINGUISHMENT OF Lien.

1. A married woman, against whom a personal judgment is rendered, even though such judgment is also against her husband, is, under Comp. Stat. 1910-4615-entitled to a homestead exemption in her separate property on which she lived with her husband, though she is not the head of a family and as such entitled to the exemption provided by Sec. 4755.

2. Parol evidence is admissible to show the purpose for which a mortgage is given where it does not tend to contradict

the written evidence, and the notes and mortgages, but was for the purpose of proving an extraneous fact or surrounding circumstance, to-wit: The purpose and intention of the parties in making the transaction evidenced by the writing.

3. Where there was a substitution of one mortgage for another upon the same property, without the payment of money, for the convenience of parties, the acts being practically simultaneous, and parts of the same transaction, with the intent that the debt and security shall continue, the result is a renewal of and not an extinguishment of the mortgage lien, and it does not give priority to an intervening judgment, even though there was a change in the mortgage debtor.

APPEAL from District Court, Sheridan County, HON. E. C. RAYMOND, Judge.

Action by Theodore Bachmann against Nora L. Hurtt and others. From an adverse judgment, Wyoming Loan and Trust Co. appeals.

Clark and Wolcott, for Appellant.

The former owner of the land, Ida M. Powers, not being the head of a family, was not entitled to a homestead exemption (Const. Art XIX, Jones v. Losekamp, 19 Wyo. 83); the judgment of the Trust Co. became a lien upon the cancellation of the old mortgage, which lien was superior to the new mortgage, taken by the plaintiff Bachmann. Under statutes similar to ours it is held that only the head of a family is entitled to the exemption (McGinnis v. Wood, 47 Pac. 492; Towne v. Rumsey, 5 Wyo. 11; Barry v. Assurance Co., 49 Pac. 148; Ness v. Jones, 88 N. W. 706); there being no homestead exemption, the judgment of the Trust Co. became a lien upon the release of the old mortgage; where a senior lien holder impairs the security of a junior lien holder by releasing the principal debtor from personal liability, he subordinates his lien to that of the second lien holder (Sexton v. Pickett, 24 Wis. 346; Barnes v. Mott, 64 N. Y. 397; McKeen v. Haseltine, 49 N. W. 195; Edwards v. Thom, 5 So. 707; Mather v. Jenswold, 32 N. W. 512;

Marple v. Marple, 65 Pac. 645; Conner v. Welsh, 8 N. W. 260).

Metz and Sackett for respondents, Nora L. and John M. Hurtt; H. Glenn Kinsley, for respondent, Theodore Bach

mann.

Homestead exemptions are provided by the Constitution and Statutes of Wyoming (Art. XIX; 4755-4760 C. S.); the statute recognizes a homestead exemption in the separate property of the wife; a wife who is the owner of a homestead is considered the head of the family (McFee v. O'Rourke, 15 Pac. 420); the purpose of the statute is to protect the family (Orr v. Schraft, 22 Mich. 260; Edmondson v. Meecham, 50 Miss. 390; no designation other than occupancy is required by the Wyoming statute; the exemption is good as against mechanics' or laborers' liens for improvements (Lumber Co. v. Vance, 88 Pac. 896); the exemption applies to separate property of the wife, even though the husband is living thereon (Herring v. Johnson, 72 S. W. 793; Hardin v. Wolve, 29 La. Ann. 333). The case of McGinnus v. Wood, cited by the counsel, involved a purchase money mortgage, and is not in point; the requirements of occupancy precludes any danger of allowing two homestead exemptions; the discharge of the old mortgage did not give an intervening judgment priority, since the new mortgage was a mere renewal of the old one; moreover, the new mortgage was a purchase money mortgage; the mortgagors having assumed the payment of the old mortgage upon purchasing the land (Curtis v. Root, 20 Ill. 53: Jones on Mortgages, 399, 924, 927; Swift v. Kraemer, 13 Cal. 526; Childs v. Stoddard, 130 Mass. 110); a change in the form of the security, or the substitution of a new mortgage for the one given at the time of the purchase does not affect the operation of a renewal (Powers v. Pence, 20 Wyo. 339: Bankers Co. v. Hornish, 27 S. E. 459).

Clark and Wolcott, in reply.

The constitution does not contemplate two homestead exemptions; the right is limited to the heads of families;

Sec. 5610 C. S., adopted from California, has no application, since it relates to the selection of homesteads, for which we have no law. McFee v. O'Rourke and Lumber Co. v. Vance, cited by respondents, are not in point, owing to different constitutional provisions; there can be but one head of a family, and the phrase is synonymous with the owner of the home; the old mortgage was discharged and satisfied, and appellants' judgment took priority over the new mortgage; there are different mortgagors, so that the new mortgage cannot logically be considered a renewal of the old one.

WINTER, DISTRICT JUDGE.

This is an action to foreclose a mortgage dated August 5th, 1914. It secured a promissory note of the same date for $1,600.00, bearing interest at 10 per cent. These instruments were signed by the defendants, Nora L. Hurtt and John M. Hurtt. On February 24, 1914, the defendant Wyoming Loan and Trust Company, duly obtained and docketed a judgment in the District Court of Sheridan County for $1,620.30 and costs, against Ida M. Powers and her husband, E. E. Powers, at which time the said Ida M. Powers was the record owner of the real estate in question.

On August 6, 1914, Ida M. Powers and her husband sold the premises, subject to a mortgage of $1,600.00, to the defendant, Nora L. Hurtt, and on November 4, 1914, the sale was consummated and possession transferred.

In June, 1910, one Spracklen and wife, then the owners of the premises, gave a mortgage for $1,600.00 to one Mary M. Kueny. Thereafter, and prior to the judgment of the defendant, Wyoming Loan and Trust Company, the Kueny mortgage was assigned to plaintiff.

The defendants, Nora L. Hurtt and John M. Hurtt, filed an answer and cross-petition in which they admitted the judgment of the Trust Company, but alleged that the said Ida M. Powers and E. E. Powers were, at the time said judgment was rendered, occupying said premises as a homestead, and that the mortgage in suit was given to take the place of the Kueny mortgage above mentioned, which had

never been paid and that at the time the property was purchased by them from Powers its value did not exceed $2,400.00.

The case was then tried upon the theory that the former owner, Ida M. Powers, had a homestead interest in the real estate in question, which was exempt from levy and sale on execution under the Trust Company's judgment; that the homestead interest amounted to $1,500.00 (the then statutory limit of exemption); that the mortgage given in 1910 by Spracklen for $1,600.00 to Kueny and assigned to Bachmann, the plaintiff, in 1911, was never paid; that there was a substitution in its place of the new note and mortgage and its purpose was to continue the security of the old mortgage: and that the said homestead exemption and the new note and mortgage herein sued upon were superior to the judgment of the Trust Company. Further, that the lien, if any, of the Trust Company's judgment could be satisfied, if at all, only out of any equity there might be in this property. over and above $3,100.00; that the property never at any time had a value equal to $3,100.00, and that therefore the property passed from Powers to Hurtt free and clear of any lien of the Trust Company.

Upon the trial of the case, the District Court, upon the law and the evidence, sustained this theory, made findings of fact and conclusions of law in conformity therewith, and rendered judgment for the plaintiff, denying the lien of the Trust Company. The defendant, Wyoming Loan and Trust Company, appeals.

The first question in this case is: Was the former owner of the land, Ida M. Powers, entitled to a homestead interest or exemption in the premises?

The provision of our constitution was, and is, as follows: Article 19 of the Constitution: "Homesteads, Section 1, Exemption Of. A homestead as provided by law shall be exempt from forced sale under any process of law and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes or for the payment of obliga