allowed in effect to give their opinions upon the general merits of the case and as to the question directly in issue. This may not be done. (Wilson v. Reedy, 33 Minn. 503, [24 N. W. 191]; McDonald v. State, 128 N. Y. 18, [27 N. E. 358]; Blum v. Manhattan Ry. Co., 1 Misc. Rep. 119, 20 N. Y. Supp. 722; Davis v. Fuller, 12 Vt. 178, [36 Am. Dec. 334]; Morcy v. Sun Mut. Ins. Co., 11 La. Ann. 748; Hoener v. Kock, 84 Ill. 408; Muldowney v. Illinois Cent. Ry. Co., 39 Iowa, 615; White v. Bailey, 10 Mich. 155.)

KERRIGAN, J.-I concur in what is said by Justice Hall. A petition for a rehearing of this cause was denied by the district court of appeal on November 26, 1909, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 27, 1909.

[Civ. No. 644. Third Appellate District.-October 29, 1909.] EMMA J. MacLEOD, Respondent, v. JOE MORAN, Appellant.

HOMESTEAD DEED OF TRUST-ABANDONMENT TO TRUSTEES NOT ABSOLUTE-PAYMENT OF DEBT-RIGHT NOT LOST.-The abandonment of a homestead by the joint act of the husband and wife to trustees named in a deed of trust to secure the payment of a debt is not absolute, but only for the purposes of the trust, and where no title is passed by the trustees under the deed, but the debt secured is paid in full, the trust is thereby extinguished and the homestead right remains unaffected.

ID.-DECISION UPON FORMER APPEAL-LAW OF CASE-The decision upon the former appeal (153 Cal. 97), as to the effect of the abandonment of the homestead to the trustees, is the law of the case upon the present appeal.

ID.-RECONVEYANCE BY TRUSTEES TO HUSBAND-MESNE CONVEYANCE FROM HUSBAND TO DEFENDANT RIGHT OF WIFE TO SUE FOR HOMESTEAD. Where the trustees reconveyed the property to the husband who, by his sole deed, conveyed the homestead premises to a third party, who quitclaimed the same to the defendant, the wife is en

titled, under section 370 of the Code of Civil Procedure, to sue alone concerning "her right or claim to the homestead property." ID.-FORM OF ACTION-CANCELLATION OF DEEDS AND QUIETING TITLE TO HOMESTEAD.—The form of the action to cancel the deeds affecting the homestead right of the plaintiff and to quiet plaintiff's homestead title to the property involved does not affect her right to sue alone under section 370 of the Code of Civil Procedure. ID.-HUSBAND NOT SHOWN TO BE A NECESSARY PARTY TO THE ACTION.Where there is nothing in the pleadings showing that the husband was a necessary party defendant to the action, and the action had been dismissed as to him as defendant, on a former trial, a motion by defendant to restore him as a party was properly denied. He was not required to be joined as a party coplaintiff, the plaintiff being clearly entitled to sue alone.

ID.-TENDER OF ISSUE AS To Validity or HOMESTEAD.-The mere fact that the defendant tendered an issue as to the validity of plaintiff's claim to a homestead title does not render the action any the less one concerning her right or claim to the homestead property under the code provision.

ID.-CONSTRUCTION OF CODE-PLAINTIFF NOT BOUND TO ESTABLISH RIGHT BEFORE SUIT.-Section 370 of the Code of Civil Procedure is not to be construed as requiring the wife, as plaintiff, first to establish a valid homestead right before she can sue alone.

ID. RIGHT OF WIFE TO SUE NOT DEPENDENT UPON SUFFICIENCY OF COMPLAINT.—Although the right of the wife to recover in the action depends upon the fact that the land is covered by a valid claim of homestead, and it does not so appear in the complaint, it does not state a cause of action; yet the right of the wife to sue alone concerning "her right or claim to the homestead," under section 370 of the Code of Civil Procedure, does not depend on the sufficiency of the complaint or her right finally to recover in the action. [D.-SUFFICIENT CAUSE OF ACTION STATED-VALID CLAIM OF HOMESTEAD BY WIFE.-Where the complaint by the wife, besides the other elements constituting her cause of action, shows a valid homestead declaration executed by her in due form, as a married woman, upon the community property expressly made for the joint benefit of herself and her husband, which expressly states that the husband has made no declaration of homestead, and that the actual cash value of the homestead property claimed is the sum of $1,500, a sufficient cause of action is stated, entitling the plaintiff to the relief asked for, in the absence of any counter showings sufficient to overcome its claims.

ID.-WIFE'S CLAIM OF HOMESTEAD COEXTENSIVE IN VALUE WITH POSSIBLE CLAIM OF HUSBAND.-The wife's claim of homestead upon the community property, made as authorized under section 1262 of the Civil Code, constitutes the identical selection which the husband could

have made, and is not limited to the sum of $1,000 under section 1260 of the code, but may extend to the full limit of $5,000 which the husband, as head of the family, could have made had he declared a homestead to that extent.

ID. PROPER REFUSAL TO ALLOW AMENDMENT OF ANSWER-PAROL PROOF OF ABANDONMENT OF HOMESTEAD.-It was proper for the court to refuse to allow an amendment to the answer, as a basis for parol proof that the homestead was intended to be forever abandoned by the husband and wife at the time of the execution of the deed of trust. The deed of trust is unambiguous and speaks for itself, and its legal effect is to limit the abandonment to the purposes of the trust.

ID.-PAROL EVIDENCE PROPERLY EXCLUDED INTENTION OF PLAINTIFF.— Parol evidence that plaintiff at the time of the execution of the deed of trust orally declared to the party from whom the loan was negotiated that she intended forever to abandon the homestead premises was properly excluded.

APPEAL from a judgment of the Superior Court of San Joaquin County, and from an order denying a new trial. Frank H. Smith, Judge.

The facts are stated in the opinion of the court.

R. L. Beardslee, and O. B. Parkinson, for Appellant.

J. A. Plummer, for Respondent.

HART, J.-The purpose of this action is to obtain a decree canceling and annulling certain deeds, together with the records thereof, purporting to convey certain real property situated in the county of San Joaquin, and to quiet plaintiff's title to said property. Plaintiff was given judgment, and this appeal is brought here by the defendant from said judgment and the order denying his motion for a new trial.

This is the second trial of the cause, the judgment rendered and entered at the first trial having been reversed on appeal by the supreme court and the cause returned to the court below for retrial. (MacLeod v. Moran, 153 Cal. 97, [94 Pac. 604].) In the language of the opinion of the supreme court on that appeal, written by Mr. Justice Angellotti, we present the facts as follows:

"The real property involved was community property, having been acquired by plaintiff's husband, A. K. MacLeod, after

their marriage and by their joint efforts, and was their family home. It was regularly selected as a homestead by plaintiff on May 3, 1902. In January, 1904, the deed of trust was executed and acknowledged by plaintiff and her husband, and recorded in the office of the county recorder. By this instrument, the husband and wife purported to grant, bargain, sell, etc., the land in question to M. L. Sims and C. L. Flack in trust, as security for the payment of $450 with interest, to one Mary E. Sims. The trust deed was in the form ordinarily used for such instruments when given as security for the payment of a debt, authorizing the trustees, among other things, to sell the property at public auction in the event of default in the payment of principal or interest, to execute and deliver a deed on such sale, and to appropriate such portion of the proceeds of sale as was necessary to the payment of the debt and costs. It was provided therein that if the makers of the deed paid at maturity all sums secured thereby, the trustees 'shall reconvey all the estate in the premises aforesaid to them by this instrument granted unto the said A. K. MacLeod, or his assigns, at his request and cost.' Immediately following the description by metes and bounds of the property conveyed was the following: 'And also all the estate, interest, claim and demand, as well in law as in equity, which the said parties of the first part may have or may hereafter acquire of, in and to the said premises, with the appurtenances, hereby expressly abandoning all right of homestead in and to said premises.' On March 23, 1904, there was executed and acknowledged by the trustees and recorded, a reconveyance of the property to said A. K. MacLeod, it being recited therein that all the indebtedness secured by the deed of trust had been paid. On the same day said A. K. MacLeod executed and delivered a deed of conveyance purporting to convey the property to one Edward Studivan, but plaintiff did not join therein. Subsequently Studivan executed and delivered to defendant Joe Moran a quitclaim deed of the property."

The only point involved and decided in the first appeal was whether the trust deed referred to constituted an abandonment of the homestead regularly selected by plaintiff prior to the execution of said trust deed in accordance with the terms of the several sections of the Civil Code relating to the subject of the selection and abandonment of homesteads. The court

11 Cal. App.-40

held that the effect of said trust deed "amounted to nothing more than an express abandonment to the trustees, for the purposes of the trust, of all claim of homestead," and that upon the payment of the debt, to secure which the trust deed was executed, the trustors were restored to all the estate with which the property was impressed at the time of the execution of said deed. The decision of the point by the supreme court adversely to the contention of appellant with regard to the effect of the provisions of the trust deed upon the homestead declared and recorded by plaintiff before the execution of said deed necessarily eliminates that question as a subject of discussion here.

But there are some additional points presented on this appeal.

1. It is claimed that the court erred to the prejudice of the defendant in refusing to grant his motion to restore A. K. MacLeod, husband of plaintiff, as a party defendant to the action. It appears that, at the first trial, MacLeod was made a defendant, but that the court dismissed the action as to him. There is nothing in the pleadings showing that MacLeod was and is a necessary party defendant. But counsel for the defendant make the point here that the motion should have been granted because the plaintiff, as they contend, is without authority to sue without joining her husband as plaintiff. The complaint discloses the relationship between the plaintiff and MacLeod to be that of husband and wife, and if appellant desired to make the point here contended for in the court below, he should have done so by demurrer. (Code Civ. Proc., sec. 430.) Assuming, however, that he could accomplish the same object by a motion, he failed to proceed properly, for he only asked that MacLeod be made a defendant.

But the point is untenable in any event. Section 370 of the Code of Civil Procedure provides that "when a married woman is a party, her husband must be joined with her, except: 1. When the action concerns her separate property, or her right or claim to the homestead property, she may sue alone."

The contention of the appellant is that this is not an action involving a right or claim to the homestead; but that it is "an action to determine whether or not the property is impressed with a valid homestead." The suggested distinction is one