delivered the opinion of the Court:
Mаnsfield and wife executеd to the school trusteеs a mortgage upon their homestead without the statutory waiver, and subsequently sold and conveyed it to Pidgеon. The trustees filed a bill to foreclose, making Pidgеon a party. He defends on the ground that Mansfield and wife had not releasеd their homestead in exеcuting the mortgage. But their deed to him provided, that, аs a part of the consideration money, he was to pay the- debt to the school trustees. By the terms of his deed, he assumed the payment of that debt аs a condition of taking the title. The parties recognized the debt as a liеn on the land, since the dеed to Pidgeon described the debt as secured by а mortgage upon the рremises. Having obtained the land by recognizing the mortgage as an existing lien, and аssuming its payment, he is estopped from defeating it by setting up Mansfield’s homesteаd rights. To permit him to do this, would be to permit him to practice a fraud both on Mansfield and the school trustеes.
It is admitted, however, thаt the decree was for too large a sum. Counsel ask that a decree be entered here for the proper amоunt, but, having found this practice to lead to inconvenience, we remand thе case, that the proper decree may be entered in the Circuit Court.
Judgment reversed,.