McHendry v. Reilly

| Cal. | Jul 1, 1859

Baldwin, J. delivered the opinion of the Court

Terry, C. J. concurring.

Bill filed to enforce a vendor’s lien for balance due of purchase money. For this balance (some three hundred dollars) defendant gave his due-bill in 1854, payable four months after date, with three per cent, interest per month. It seems no interest was due on this balance until the giving of the note. The premises had become the homestead of the defendant before the giving of this note. The decree of the Court was for a sale of the land, for some seven hundred dollars and upwards, being for this balance and the agreed interest.

We do not understand that land on whiph purchase money is due may not become impressed with the character of a home: stead; but only that the homestead right is subordinate to the lien, when such lien exists, for the purchase money. But having acquired this character, it was not competent for the husband to charge the land further by agreement of this soft, without the wife’s assent, as provided by statute, any more than to bind it by an entirely new contract. For this error the decree is reversed, with leave, however, as the point does not seem to have been taken below, and may be varied by other proofs, to both the parties, to try the case de novo if desired.