The opinion of the Court was delivered by
Moses, C. J.The facts of the case may be thus briefly stated: In January, 1870, the land in question was sold by the executors of Sondley at public outcry and purchased by George W. Calmes, the husband of the appellant, — the terms being one-half cash and for the balance a credit of one year with interest, secured by bond and a mortgage of the premises.
The cash portion was paid to the vendors by Calmes with money borrowed from the said Henry Koon, to whom Calmes gave his note therefor, with two sureties. On this note judgment was obtained against the principal in 1871.
After the credit portion- of the purchase money fell due, Calmes, on the 16th day of January, 1871, borrowed from the said S. C. McCracken the money with which it was paid. On offering payment, the latter said he wanted an assignment of the bond and mortgage, but, only one of the two mortgagees being present, his counsel advised that a valid assignment could not be executed by him alone, and suggested “ that a mortgage of the premises after the payment, executed by Calmes, with a note at the same time specifying the consideration to be a loan made for the payment to the Sondleys of the balance of the purchase money, would be just *97as good.” Accordingly, Calmes’s note was taken by McCracken for the amount loaned, payable at twelve months, including cost of stamps and expense of mortgage, to bear interest at twelve per cent, per annum; that on the' original bond was at the rate of seven per cent. Calmes departed this life on 23d February, 1872, leaving his widow, Frances Ann, the appellant, and an infant daughter.
Through proceedings in the Court of Probate for Newberry County, to which Koon and. McCracken were parties, the said Frances Ann claimed, on behalf of herself, dower in the said land, and for herself and child a right of homestead, both of which were allowed by the said Court.
On appeal to the Circuit Court by the respondents here, the decree of the Probate Court was affirmed so far as it sustained the claim of the widow to dower as against the judgment of Koon, and modified as to the mortgage of McCracken by restricting such claim to the excess of the land, or the funds derived from its sale over and above the amount, necessary for .the satisfaction of the mortgage, and rejecting the claim of homestead, except as to such .amount as may remain from the proceeds of the sale of the land after satisfying the debts of both Koon and McCracken. From the decision below, the said Frances Ann appeals to this Court.
We will first consider whether the judgment of Koon can prevail against the right of homestead claimed by the appellant as the head of a family. She occupies that relation, and, as was held in In re Kennedy, (1 S. C., 227,) and Bradley vs. Rodelsperger, (3 S. C., 226,) may lawfully demand the provision conferred by the Constitution, unless the obligation through which it is proposed to debar her is of the class enumerated in that instrument as sufficient for the purpose. With this view, it is contended that the note given by Calmes to Koon for the money which paid the cash portion of the purchase money of the land was “an obligation contracted for the purchase of said homestead,” which, under the Constitution, renders the land liable to the debt, and to that extent excludes the right of homestead.
In our view, the proposition is not supported either by the letter or the spirit of the Constitution. The contract here referred to and intended is that through which the land was purchased, and the obligation must arise from its force and effect.. It was a provision for the benefit of the vendor, for without it, if the purchase money was not paid, or secured to be paid, a judgment which he might *98afterwards recover on the debt so created might be defeated by the interposition of the right of homestead by the debtor. It was to secure the credit given on the purchase; but here, so far from there having been a credit as to this portion, the cash was actually paid to the vendors, and the only credit was as to the other half, for which they took a mortgage of the premises conveyed. If for the cash portion there was nothing due, there could be no “obligation contracted for the purchase.” There was no privity between the executors of Sondley and Koon by virtue of which any contract arose for the money loaned by the latter to Calmes. There is no evidence that the executors even knew the source from which the money paid to them was obtained. Koon did not look to the land for the payment of his loan, but to the note with sureties which he took on making it. He is in no wise a creditor by reason of any' contract for the purchase, and it is only in favor of such a creditor that the constitutional exemption can apply. In our judgment, the right of homestead, as claimed, is not affected by the judgment of Koon.
The next question to be considered involves the right of McCracken io bar the appellant of her dower in the land mortgaged to him by her husband. The respondent contends that his mortgage is to have the full force and effect of the one which was originally executed to the executors of Sondley so far as relates to the demand thus made; and as the right of dower in that could only have extended to any surplus remaining after the satisfaction of the whole debt due on the note which it was to secure, it can prevail only to the same extent as against the mortgage held by Mc-Cracken.
While it is admitted that the equity insisted upon is not enforceable on the principle of subrogation, it is contended that it must avail, and is sustainable through the rule which applies to the substitution of instruments. It might be enough to say that the application of the doctrine here fails in a very essential element, to wit, the fact of substitution. No new mortgage was executed to the executors of Sondley in the place of the one they held, and on which satisfaction in due form was entered. Substitution implies an act between the same parties, through which, by agreement, something is accepted in lieu of something given up, — and generally they are of equal value, — the one filling the place of the other. In the case at bar, the contract between the parties is made manifest *99by the note which Calmes executed to McCracken. The consideration expressed on the face of it was the amount of money received by the maker of the payee as a loan, “ which was applied to the payment of the purchase money due on lands purchased by me” [the maker] “of the estate of Richard Sondley, deceased.” The time of payment was extended to twelve months, The amount was for a greater sum than that due on the original bond, and at a largely increased rate of interest. In regard to the case of Burton vs. Pressly, (Chev. Eq., 1,) cited by the counsel of the respondents as confirming the rule for which he contended, it must be remembered that “another note of precisely the same tenor and date was executed in the place of the one given up.” Here a note of a different date ^.nd for a different amount was given, not to the original mortgagees, but to a third person, who made the loan which satisfied the mortgage before the note on the new consideration was made to him.
It may have been understood by J. R. Sondley, the only one of the mortgagees present, and the said McCracken and Calmes, as it was supposed by the counsel of the former, that the course adopted continued the new mortgage as a subsisting lien on the land to the amount of the note which it was given to secure; but an equity so arising between the said parties cannot interfere to defeat intervening legal rights.
Whereas in the cases of Clark vs. Monroe, (14 Mass., 351,) and Jackson vs. Austin, (15 Johns., 447,) cited on the argument, the purchase money was paid by a third person, the title made to the purchaser and a mortgage by him at once given to the party advancing the money, it was properly held that the wife had no more- claim to dower than if the conveyance being made to the husband he had at once executed a mortgage to the grantor for the purchase money. The seizin in him in the instance first stated was but transitory, to enable him effectually to do what by his contract he had undertaken and promised. But here, on the satisfaction of the mortgage to the executors, the seizin of the land was in him and the right of the wife to her dower vested. As is said by Parker, C. J., in Bolton vs. Ballard, (13 Mass., 230,) “although in one view this might be considered a seizin for an instant, yet it is to be taken in connection with the former seizin, which, although affected by the rights of the mortgagee, was always in force against every other person, and when those rights ceased to exist the estate was as if it *100bad never been encumbered.” To whatever extent the enstrument may prevail as between McCracken and Calmes to secure the right it proposed to the latter, it cannot bar the dower of the widow, who was neither a party to it or either affected with notice of the transaction.
The mortgage, however, must be held to exclude the appellant from her claim of homestead in the premises which it covers, except as to what may remain of their proceeds on sale for foreclosure, after satisfying'the amount due upon it.—Homestead Association vs. Enslow, 7 S. C., 1.
It is ordered that the Clerk of this Court certify to the Probate Court for the County of Newberry the judgment of this Court, that such further orders may be there taken in conformity therewith, and any other orders necessary for matters in the case not disposed of.
Wright, A. J., and Willard, A. J., concurred.'