Until such occupancy, the proposed creditor cannot know what it is that may be claimed as exempt. If there is an actual residence, however, he knows that the law gives the exemption. But without now further discussing this view of the case, or expressing more definitely our conclusions thereon, we pass to the consideration of other questions which are decisive of the case before us.

It will be seen that plaintiff claims under a judgment rendered upon a debt, contracted at the time of the purchase of the homestead, or rather that the debt, to satisfy which the property was sold, was a part of the purchase-money.

Plaintiff was the vendor and defendant the vendee of the premises. There are no rights of third persons intervening. Under such circumstances, it is, in our opinion, contrary to the policy of the statute to say that this debt was so contracted after the purchase of the homestead as to render the property exempt.

The legislature, with the view of avoiding all constitutional questions, has made the exemption prospective and not retrospective. When the homestead has been purchased, then, as to all subsequent debts, it is exempt; for all prior ones it is liable.

Is this a subsequent debt? The liability certainly did not arise after such purchase. The agreement to buy, and the corresponding promise to sell, was before the title papers passed. The final obligation to pay arose at the time of finally consummating the contract, when the notes were passed and the deed made. If these shall be treated as concurrent acts, can the claimed exemption be sustained? Upon the soundest principles, we think not.

The claim of defendant is, that the homestead shall not be liable for the money agreed to be paid for its purchase And yet we are not aware of any case which holds that such claim is to be preferred to that of the vendor for the purchasemoney. In this state, it has been expressly held that a subse quent homestead right will not cut off the original claim for the purchase-money: Barnes v. Gay, 7 Iowa, 26. In Califor nia, it is held that such homestead right is subordinate to the lien for the purchase-money: McHenry v. Reilly, 13 Cal. 75.

And in another case, where the husband borrowed money to pay for the homestead, giving a mortgage thereon in his own name, it was held that as the deed of the vendor, and the

mortgage to such third person, were simultaneous acts, the purchaser and wife had neither an equitable nor legal right of homestead: Lassen v. Vance, 8 Cal. 271 [68 Am. Dec. 322]. It may well be doubted whether this case is sustained by the authorities in all its parts: See Stansell v. Roberts, 13 Ohio, 148 [42 Am. Dec. 193]; Davis v. Peabody, 10 Barb. 91. But however this may be, it recognized the rule that the vendor has the paramount lien, and this is sufficient for the purposes of the present case. In Stone v. Darnell, 20 Tex. 11, Hemphill, C. J., says: "We have held in repeated cases in favor of the vendor that his vendee, as against him, could not claim the exemption, or be shielded under it from the payment of the purchasemoney, and this was on the ground that until such payment, the superior right or title in the land remained in the vendor; that the title, in fact, had not fully vested in the vendee until the discharge of the purchase-money; that the claim of the homestead is based on the fact that the land, as against the vendor, is held by an indefeasible title." And see Shepherd v. White, 11 Id. 346, where it is held that "if there was a resulting trust, and the nominal grantee held the land for the use of the real purchaser, the trustee could not acquire, upon the land, a homestead free from and unencumbered by the trust; he could not claim the protection of the homestead law any more than he could if he had been a real purchaser, and taken a deed absolute, but given a mortgage on the land so purchased, to his vendor, to secure the purchase-money." Also Farmer v. Simpson, 6 Id. 303.

But it may be said that these cases were decided upon peculiar statutes, and that in most, if not all of them, the proceeding was to foreclose a mortgage or enforce a vendor's lien, while in this case the plaintiff simply took a judgment at law on one of the notes secured by the mortgage. Under our law, does this change the rule?

The statute gives a party the privilege to sue upon the note, instead of proceeding to foreclose the mortgage. In such a case, the mortgaged property may be sold, and the lien of the judgment attaches from the date of recording the mortgage: Code, 1851, secs. 2086, 2087. The case of Redfield v. Hart, 12 Iowa, 355, recognizes the rule that before such judgment lien can relate back as to third persons, the property must be de scribed in the same, and a special execution directed to issue. Not so, however, as between the parties. The statute also de

clares that the vendee shall, for purposes of foreclosure, be treated as a mortgagor of the property purchased, and his rights foreclosed in a similar manner: Revision 1860, sec. 3672. And the case of Barnes v. Gay, 7 Iowa, 26, which in principle does not differ from the one before us, expressly holds that the homestead is subordinate to the lien of the vendor.

It is held, therefore, that the deed and mortgage were, at most, but simultaneous acts; that the seisin of the husband was so instantaneous that it was not necessary to the validity of the mortgage that the wife should sign and concur in the same, in order to make it liable for the purchase-money. And further, that as between the parties, the lien of the judgment on the note related back to the recording of the mortgage, and that (aside from any question of redemption) the purchaser took his title, divested of the homestead claim.

Reversed.

OCCUPATION NECESSARY TO CONSTITUTE HOMESTEAD: Fogg v. Fogg, 77 Am. Dec. 715; Tumlinson v. Swinney, 76 Id. 432; Franklin v. Coffee, 70 Id. 292, note 294; note to Pryor v. Stone, Id. 347-350. Property owned by the head of a family is not invested with the character of a homestead before it is actually occupied as a home: Hale v. Heaslip, 16 Iowa, 452; Elston v. RobinBon, 23 Id. 211; Neal v. Coe, 35 Id. 409, citing the principal case. And a change of homestead by a judgment defendant from one parcel of land to another cannot displace or affect the liens of judgments attached before such change: Elston v. Robinson, 21 Id. 534, citing the principal case.

MORTGAGE EXECUTED TO SECURE PURCHASE-MONEY OF HOMESTEAD is valid though executed by the husband alone: See Lassen v. Vance, 68 Am. Dec. 322, note 323; Carr v. Caldwell, 70 Id. 740, note 742. The principal case is cited to the point that a homestead is not exempt from judicial sale for the satisfaction of a judgment for the purchase-money: Cole v. Gill, 14 Iowa, 530; Burnap v. Cook, 16 Id. 153; Hyatt v. Spearman, 20 Id. 513; Bills v. Mason, 42 Id. 333.

JUDGMENT LIENS ATTACH WHEN, AND NATURE AND EXTENT OF: Ses Buchan v. Sumner, 47 Am. Dec. 305, and note 319, citing prior cases. In California the judgment is a lien from the time it is docketed: Ackley v. Chamberlain, 76 Id. 516, note 518. A decree of sale on foreclosure operates upon such interest as the mortgagor had in the property at the execution of the mortgage: Boggs v. Fowler, Id. 561. The principal case is cited to the point that, as between the parties, a judgment at law upon a note secured by mortgage is a lien from the date of the recording of the mortgage: State v. Lake, 17 Iowa, 218; and that the lien of a mortgage may be enforced in an action on the note by an order making the judgment a lien as of the date of the mortgage, and for the enforcement of the judgment against the mortgaged property: Morrison v. Morrison, 38 Id. 78. Although, as between judgment creditors and third persons, it is not competent for the judgment creditor to extend the lien of his judgment by proof aliunde, yet,

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as between the parties to the judgment and their heirs, the rule is different, and the judgment creditor may show that his judgment attaches as a lien although it may not so appear by the record: Delavan v. Pratt, 19 Iowa, 432, 433, citing the principal case. And in a contest between the judgment debtor and a purchaser under execution issued upon the judgment, it is competent for the purchaser to show by the pleadings and the record in the action that the judgment attached as a lien upon the property purchased by him, although in form, upon the face of the judgment alone it did not appear to be a lien: Markham v. Buckingham, 21 Id. 496, citing the principal case. It is also held, citing the principal case, that the satisfaction of a judgment on notes given for the purchase-money of real estate by a sale under general execution of such real estate, does not operate to discharge the vendor's lien in such manner as to give priority to another judgment against the vendes: Patterson v. Linder, 14 Id. 416.

ACCUSED IS PRESUMED INNOCENT until the prosecution establishes his guilt by proof of every material allegation and every ingredient of the crime. He may stand on this presumption, withholding all proof, until the prosecution has made out a complete case.

TO CONVICT ON CIRCUMSTANTIAL EVIDENCE, the circumstances must all concur to show that the prisoner committed the crime, and they must all be inconsistent with any other rational conclusion. A few or a multitude of facts proved, all consistent with the supposition of guilt, are not enough to warrant a verdict of guilty.

ERRONEOUS INSTRUCTION IS NOT CURED by afterwards embodying in the charge the true rule of law applicable to the point.

CHARGE THAT ANOTHER AND "DEFENDANT might both be guilty as princi pals in this murder," is a mixed one of law and fact, and is erroneous; for while it contains the proper instruction that two persons may be guilty as principals in one crime, it presents the fact that this is murder, without informing the jury that they are the exclusive judges of the facts.

COURT MAY PRESENT FACTS IN CHARGE, but must inform the jury that they are the exclusive judges of all questions of facts.

CHARGE WHICH PRESENTS FACTS, or suggests a conclusion from facts, without informing the jury that they are the exclusive judges of such facts, is erroneous.

THE opinion states the facts.

Adams, Crozier, and Ludlum, and W. P. Gambell, for the appellant.

Thomas P. Fenlon, county attorney, and F. P. Fitzwilliam, for the appellee.