Dillon v. Byrne

Citations

• 5 Cal. 455

Syllabus

<p>B. bought the premises in controversy, and executed a note in part payment, which was afterward transferred to the plaintiff. Soon after the transfer, the plaintiff loaned B. an additional sum, and took his note and a new mortgage on the same lot, and his interest in another lot, and caused the first mortgage to be canceled and satisfied of record. In a suit to foreclose the mortgage, the wife of B. intervened and claimed the premises as a homestead. Held, that the land was liable for the remainder of the purchase money, no matter to what purpose it might be devoted.</p> <p>The land is charged with a debt, which can only be discharged by payment, voluntary relinquishment, or the acceptance of some new or other security.</p> <p>The plaintiff is entitled to make out of the lot claimed as a homestead only the actual amount of the purchase money and interest remaining due, and for the excess over such purchase money, he must proceed on his other security, or against the party, but not against the homestead.</p> <p>Where a new mortgage is executed in lieu of an old mortgage, for the same debt, the execution of the new and satisfaction of the old mortgage, may be regarded as simultaneous acts.</p> <p>Where a mortgage is a mere security for the purchase money of the property, the debt is not lost by the acceptance of a new mortgage, intended to supply the old one and secure the same debt.</p>