stead, in due form, upon the land so conveyed to and mortgaged by him. The defendant Caroline Alvis was and is the wife of C. P. Alvis. A. A. Van Sandt died on the nineteenth day of January, 1887, leaving a last will and testament, and plaintiff is the duly appointed and qualified executrix thereof.

On the 1st of September, 1888, defendant C. P. Alvis, not having paid the promissory notes aforesaid, and being unable to pay the same, applied to the plaintiff herein for an extension of time to pay the same, and agreed that, if the time was extended, he would pay the same, and thereupon said C. P. Alvis made his promissory note for four thousand dollars, payable to plaintiff as administratrix (executrix), or her order, on or before four years, with interest at eight and one-half per cent per annum, and conditioned as in the former notes, and providing that, if the interest was not paid annually, the whole sum should become due at the option of plaintiff, and, to secure the payment thereof, said C. P. Alvis executed to plaintiff a mortgage upon the same premises covered by the first mortgage, and theretofore included in the homestead.

Plaintiff accepted and recorded the new mortgage, received the promissory note, satisfied the former mortgage of record, and delivered to said defendant the four old promissory notes. Defendant Caroline Alvis, the wife of the other defendant, had full knowledge of all the facts, acts, and representations of her husband in procuring an extension of the time of payment of said first notes, and consented thereto, but did not unite with her husband in the execution of the mortgage of 1888 upon the home stead.

The interest not having been paid upon the last-mentioned note, plaintiff elected to consider the whole 168 amount due, and instituted this action in 1891, at which time three of the original promissory notes of 1883 were barred by the statute of limitations as against Caroline Alvis, and the court so found, and decreed the fourth note, which was not thus barred, to be a lien upon and secured by the mortgage upon the homestead.

From the foregoing statement of facts, it appears that no new indebtedness was sought to be created or secured by a lien upon the homestead. The indebtedness on account of the purchase price of the homestead, which was secured by the original mortgage thereon, was in part about to become barred by the statute of limitations, was, at the request of the defendant C. P. Alvis, extended at the same rate of interest and a new mortgage executed upon the same property.

As to the first mortgage which was executed by C. P. Alvis at

the date of his purchase of the premises to secure a portion of the purchase price thereof, no homestead could thereafter be carved out of the property, so as to impair the rights of the mortgagee: Montgomery v. Tutt, 11 Cal. 190; Civ. Code, sec. 1241, subd. 4. The first mortgage was, therefore, a valid lien upon the premises, prior in time and superior to the homestead claim.

The question in the case at bar relates, not to the power of the husband to encumber the homestead without the joint action of the wife, but is this: Was the execution of the new note and mortgage the creation of a new encumbrance, or simply a change of the form of the old encumbrance?

· Swift v. Kraemer, 13 Cal. 530, 73 Am. Dec. 603, was a case in which one Revalk, an unmarried man, owned a lot of land upon which there were two mortgages, one of which, for fifteen hundred dollars, was held by Kraemer. Revalk married in 1857, and thereafter executed another mortgage, in which his wife did not join, upon the property previously covered by the two mortgages, and which in the interim had become a homestead of Revalk and wife. Kraemer had paid off one of the 169 prior mortgages and satisfied the other, which constituted (except as to five hundred dollars) the consideration of the last mortgage.

The release of the old mortgages and the execution of the new one were on the same day. The court said: "But as to the debts secured by the original mortgage to Leck and Fontacelli and Kraemer, we regard the cancellation of the old mortgages and the substitution of the new as contemporaneous acts. It was not creating a new encumbrance, but simply changing the form of the old. A court of equity, looking to the substance of such a transaction, would not permit a release, intended to be effectual only by force of and for the purpose of giving effect to the last mortgage, to be set up, even if the last mortgage was inoperative. It would not permit Revalk to take Kraemer and Eisenhardt's money and apply it in extinguishment of a prior encumbrance, and then claim that the property should neither be bound by the new mortgage or the old," etc: Citing Dillon v. Byrne, 5 Cal. 455; Birrell V. Schie, 9 Cal. 106; Carr v. Caldwell, 10 Cal. 380; 70 Am. Dec. 740. See, also, Tolman v. Smith, 85 Cal. 280.

The case of Barber v. Babel, 36 Cal. 11, was one upon all fours with the case at bar, except that there the original note and mortgage were barred by the statute of limitations at the time of suit brought to foreclose, and the court held that as the original mortgage was barred, and as the wife had not joined in the execution of the second mortgage, no recovery could be had.

Sawyer, C. J., in his opinion at page 23 of the report, refers to and quotes from Swift v. Kraemer, 13 Cal. 530, 73 Am. Dec. 603, with apparent approval, and places the decision upon such bar of the first note and mortgage and the invalidity of the second mortgage.

It is very evident, in the case at bar, the first mortgage was only released to give effect to the second one, and, in a court of equity, the defendants should not be heard to say that the second mortgage is void by reason of not being executed by the wife, and at the same time 170 to successfully contend that the release of the first mortgage extinguished it.

The complaint states the whole facts of the transaction, sets out both the mortgages, and asks that they be decreed to constitute but one security.

Under such circumstances, the court below was justified in holding as it did, in substance: 1. That the second mortgage upon the homestead was void, as against the wife, by reason of her not having joined in such mortgage; 2. That the first mortgage, having been satisfied only for the purpose of giving effect to the second one, will, in equity, be deemed to be and remain in force until the demand secured thereby is barred, etc; 3. That one of the notes secured by the first mortgage not being barred at the date of suit brought, a foreclosure upon the homestead could be decreed as to that note only.

That part of the judgment appealed from should be affirmed. Belcher, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion the judgment appealed from is affirmed.

Harrison, J., Garoutte, J., Van Fleet, J.

HOMESTEADS.-RETROACTIVE HOMESTEAD LAWS IMPAIR THE OBLIGATIONS OF CONTRACTS, and are unconstitutional: Extended note to Cusic v. Douglass, 87 Am. Dec. 464.

HOMESTEAD-CONVEYANCE BY HUSBAND ALONE.-A conveyance of a homestead. in which the wife does not join, is absolutely void, under a statute declaring that no conveyance affecting the homestead of a married man shall be of any validity, unless the wife joins in the execution thereof: Pipkin v. Williams, 57 Ark. 242; 38 Am. St. Rep. 241, and note. A mortgage of a homestead is not valid, unless signed by both the husband and wife: O'Malley v. Ruddy, 79 Wis. 147; 24 Am. St. Rep. 702, and note, with the cases collected.

DAVIS V. Ward.

[109 CALIFORNIA, 186.]

VENDOR AND VENDEE - BONA FIDE PURCHASERNOTICE OF MISTAKE IN MORTGAGE.-The record of a mortgage, in which the land described does not belong to the mortgagor, does not give constructive notice of the mistake to the purchaser of the land owned by the mortgagor, and who has paid the purchase money without actual notice of the mistake. Such mistake cannot be corrected against him.

NOTICE — BONA FIDE PURCHASERS BURDEN OF PROOF.-One who sets up the defense of subsequent purchase in good faith, without notice, must affirmatively show a purchase for value, and that the purchase money has been paid before notice.

NOTICE-PAYMENT OF PART OF PURCHASE PRICE.One who claims to be a bona fide purchaser without notice, but has paid a part only of the purchase price before notice of an outstanding equity, is entitled to protection only as to the amount paid before such notice. The holder of the equity can enforce his claim to the whole land only upon condition of his doing equity by refunding to such purchaser the amount paid before notice.

PAYMENT OF PART OF PURCHASE MONEY AND MORTGAGE FOR REMAINDER.—If a purchaser, after paying part of the purchase price, executes a mortgage upon the land to secure notes for the remainder without notice of any outstanding equity against the land, and the mortgagee assigns such security and notes to a bank without notice to any of the parties of such equity, the notes operate as payment, and both the purchaser and the bank are protected as bona fide purchasers.

J. A. Hannah, for the appellant.

Bradley & Farnsworth, for the respondents.

187 MCFARLAND, J. This action was brought to have reformed (and foreclosed) a certain mortgage, executed October 8, 1891, by the defendant Ward to one Vancil, and duly recorded April 8, 1892, and by Vancil assigned to plaintiff. Brown, Fleming, and the Visalia Savings Bank were made defendants, as claiming some interest in the mortgaged premises. It is averred in the complaint that the mortgage was intended to be of the southwest quarter of the southeast quarter of section 13, and the northwest quarter of the northeast quarter of section 24, in township 18 south, range 25 east, Mount Diablo base and meridian; but that, by mutual mistake of 188 the parties, the mortgage was made to describe the lands as situated in range 24; and the prayer is to have the mortgage reformed so as to describe the premises as being in range 25. Ward inade default. Brown and Fleming answered, setting up that, after the execution of said mortgage, said Ward had sold and conveyed to Brown about one-half of the said land. in range 25, and the remainder to Fleming; and that they were

bona fide purchasers for a valuable consideration and without notice of the mistake in said mortgage. (The description in the mortgage would have corresponded with lands bought by Brown and Fleming if the range had been 25 instead of 24.) The bank set up that it was the assignee and holder of two negotiable promissory notes given by Brown to Ward, and also assignee of a mortgage, given by Brown to Ward upon the said land purchased by Brown from Ward, as aforesaid, to secure said notes; and that it purchased said notes and mortgage for value and without notice, etc. The court granted a nonsuit as to Fleming, Brown, and the bank, and rendered judgment in their favor. From this judgment, and from an order denying his motion for a new trial, plaintiff appeals.

Appellant contends that purchase in good faith without notice, etc., is an affirmative defense, and that therefore the granting of the nonsuit was erroneous. But appellant put Brown and Fleming on the stand as his witnesses, and it was proved affirmatively by their testimony that they had no notice nor information of any kind in reference to the said mortgage by Ward to Vancil. It was also proven that Fleming was a purchaser for value, and that he had made full payment of the purchase money at the time of his purchase. The only question, therefore, as far as notice is involved, is whether or not they had constructive notice; and this question must, beyond doubt, be answered in the negative. They were concerned only with the land which they purchased, and were chargeable with constructive notice of whatever the record showed as to that land; 189 and the record showed an unencumbered title to that land in Ward. If it was their duty to have known of the record of the mortgage to Vancil, an examination of that record would merely have shown that the mortgage there recorded was upon land six miles away from the land purchased by them; and the record of that mortgage was constructive notice only of "the contents thereof": Civ. Code, secs. 1213, 1214. It was not constructive notice of any mistake: Chamberlain v. Bell, 7 Cal. 293; 68 Am. Dec. 260; Frost v. Beckman, 1 Johns, Ch. 288; Sanger v. Craigue, 10 Vt. 555; 5 Lawson's Rights, Remedies, and Practice, sec. 2279; Pomeroy's Equity Jurisprudence, sec. 654. The case of Erickson v. Rafferty, 79 Ill. 209, cited by appellant, is not in point. There the subsequent purchaser in that case was so circumstanced as to be put on inquiry, and had been informed that there was a mortgage on the land.

So far, therefore, as respondent Fleming is concerned, the nonsuit was properly granted as to him, for it was shown that he was