(dissenting). The supplemental opinion of the majority is so far based upon conclusions of law which seem to me to be erroneous that I am constrained to dissent therefrom, and to indicate objections, heretofore unexpressed, to conclusions of facts. The decision of the trial court established in favor of the plaintiff a lien for the money which it had actually paid for Moreau Carroll to complete the purchase of the property in controversy. *577The decision of the majority gives to the defendant property for which neither she nor her husband ever paid, and holds it exempt from liability for the purchase price actually paid for them by the plaintiff. That such a result is inequitable seems clear, and that it should be avoided, unless absolutely required by the law, is equally clear. The contract between Beennaker and Carroll did not give to the latter any right to take possession of the property until full payment of the purchase price should be made. There is no evidence, excepting the fact that Carroll moved into a part of the house a day or two before payment was made, that the contract was in any respect modified. In fact, Beermaker was a,t the time absent from the state, and the property seemed to have been the home of himself and family, and "it does not appear that any one in Iowa had a right to modify the contract. Certainly, we should not presume that there was a valid alteration, in order to accomplish the inequitable result of depriving the plaintiff of the right to a lien on the property. It is true that the plaintiff relied upon the Cotter paper as security for the loan, but it does not appear to have otherwise waived any right it might have against the property in question. There can be no doubt that Carroll relied upon the promise of the plaintiff to make the loan in contracting for the property, and it is shown without dispute that the plaintiff paid the money in controversy, not to Carroll, but to the owner of the property, as a part of the purchase price. Until the payment was made, Carroll had no right, under his contract, to take possession of the property; and it seems to me clear, under the facts disclosed, that Carroll should be held not to have acquired the property, within the meaning of the law, until that payment had been made. It is true that a homestead right does not necessarily depend upon a title in fee .simple, but may attach to a. leasehold interest (Pelan v. De Bevard, 13 Iowa, 53); or to property held under a contract for a deed (Stinson v. Richard*578son, 44 Iowa, 373; Lessell v. Goodman, 97 Iowa, 681). Bui in each of the cases referred to actual possession was taken under the lease or contract, which created, in the person claiming the homestead right, an interest in the premises occupied. That actual occupation and residence, as a rule are necessary to constitute a homestead, is settled. Christy v. Dyer, 14 Iowa, 483. As stated, it is not shown in this case that the possession taken by Carroll before final payment had been made was authorized. Indeed, that possession was but a part of the premises, the Beermakers retaining actual possession of a part until after full payment had been made. The statute makes a homestead liable “for debts contracted prior to the acquisition.” It was held in Christy v. Dyer, supra, that a debt contracted for the purchase money of a homestead cannot be said to have been contracted after the purchase, and that the homestead is liable for it. The debt in question was contracted before Carroll was entitled to possession of the premises under his contract, and therefore before the homestead right attached. In other words, as it seems to me, the homestead had not been acquired, within the meaning of the statute, until after the debt in question had been contracted. The views' I have expressed appear to- me not only to- be founded in reason, but to be authorized by statute, 'and to be sustained by the weight of authority. In Austin v. Underwood, 37 Ill. 438, it was held that a creditor who had paid the purchase price of a homestead was entitled toi enforce his claim against it. The case of Eyster v. Hatheway, 50 Ill. 520, relied upon by the majority, was referred to and distinguished. In Magee v. Magee, 51 Ill. 500, the homestead was held liable for the payment of a debt contracted to discharge an obligation for a part of the purchase price. The case of Austin v. Underwood, supra, was again distinguished.. The same rule was followed in Carr v. Caldwell, 10 Cal. 380. See, also, Lane v. Collier, 46 Ga. 580; Hawks v. Hawks, 46 Ga. 204; Nichols v. Overacker, 16 Kan. 54; *579Loan Co. v. Everheart, 18 Tex. Civ. Appl. 192 (44 S. W. Rep. 885). It was said in Hopper v. Parkinson, 5 Nev. 233, that “there can be no such thing as a homestead right, as against the purchase money, unless the lien, whether created by mortgage or existing by way of a vendor’s lien,, has been relieved in some lawful way.” In Stevens v. Stevens, 10 Allen, 146, it appeared that certain premises were purchased by the defendant,, who at once occupied them as a homestead. In the morning of the day of the purchase the defendant borrowed of the plaintiff money, and paid it to his grantor, as a part of the consideration for the premises, at the time the deed was delivered. After-wards, and in the afternoon of the same day, the defendant made to the plaintiff two notes for the money borrowed» It was held that the debt must be regarded as contracted prior to the acquiring of the homestead right, and that the premises were subject to the payment of the debt. See, also, King v. Stetson, 11 Allen, 407. In Coleman's Adm'r. v. Parrott, * Ky. (32 S. W. Rep. 679), it is held that a homestead is liable for the payment of the money borrowed and used to pay the purchase price of the homestead. Some of the cases referred to were decided under statutes somewhat different from the statute of this state, and perhaps announce a broader rule than our statute warrants; but some of them do not, and in principle sustain the right of the plaintiff to the lien it seeks. Of the cases cited to support the conclusion of the majority, the case of Eyster v. Hatheway is shown, by subsequent decisions if the court which determined it, not to be applicable to such a case as-this. In Mitchell v. McCormick, 32 Mont. 249 (56 Pac. Rep. 216), the court distinguished between that case and cases-like this, in which money is borrowed for the purpose of purchasing a homestead. The case of Lee v. Murphy, 119 Cal. 364 (51 Pac. Rep. 549), involved the application of statutes of California in regard to unrecorded mortgages and vendors’ liens, and is so unlike this as, in my opinion, not *580to be in point. Ruhl v. Kauffman, 65 Tex. 726, did not involve any question found in this case. Dreese v. Myers, 52 Kan. Sup. 126 (34 Pac. Rep. 349), was governed by the rule of Eyster v. Hatheway, 50 Ill. 522, and is unlike this case. In McCarty v. Brackenridge, 1 Tex. Civ. App. 170 (20 S. W. Rep. 997), the court said that a “mer& lender of money for the purpose of buying a homestead has no lien, unless there was at the time an agreement to that effect;” but the point thus considered was not involved in the case. The case of Loftis v. Loftis, 94 Tenn. Sup. 232 (28 S. W. Rep. 1091), appears to be most relied upon by the majority, and to be most nearly in point; but whether the money there in controversy was borrowed, as in this case, before the homestead right was acquired, or after, is not shown, and the court recognized the fact that there is a conflict in its own decisions as well as in the decisions of other states in regard to the correct rule. The case is not sustained by the weight of authority. It may be conceded, however, for the purpose of this case, that a homestead is not liable for money borrowed to discharge an obligation for the purchase price, previously entered intor without admitting that the lien asked in this case should be denied; for the reason that, as it seems to' me, the evidence justifies the conclusion that the homestead right had not been created when the loan _was made. The fact that credit was given to Carroll for the money before it was paid out does not appear to me to be material. In my opinion, the decree of the district court was authorized by the evidence, effected an equitable result, and should be AFFIRMED.
Note, — Not officially reported. — Reporter.