ON REHEARING.
Bermudez, C. J.We have again given our attention to the questions of novation, of res judicata, of homestead, and of the surety’s liability, involved in this case.
We do not consider that the circumstances of the case, as the record has brought them up, show that any novation has taken place, as claimed by the plaintiff. The transaction in no way altered the essence of the identity of the original contract, although it may, to some extent, theoretically indifferent, but practically significant for the plaintiff, have modified the nature of the contract, as to time and mode of enforcement of the payment of the debt. The act of compromise is perfectly reticent touching any express or even implied novation, either as to creditor’s debt, or securities, or debtor, under any phase under which the case can be viewed.
We cannot infer, from the act of compromise, that the vendor’s privilege was either intended to be or was actually abandoned and waived. It is a guarantee which attaches so tenaciously to the nature ,o£ the contract of sale on term, that the Roman law says that it adheres •to the very entrails of the thing, adheret visceribus rei. It exists-until *829it has been formally and unequivocally relinquished. See the Bacchus ■case, 4 A. 313.
The question of privilege or no privilege of vendor js practically of no significance in a case like'the present one, in which a claim to a homestead is asserted where the purchase price is unpaid.
Much stress is laid for .a rehearing on the argument that the judgment of the previous court (Spencer, J.), dissolving with damages the injunction issued at the instance of Mrs. Baker and of her husband, does not constitute res judicata, because the suit was dismissed on an -exception of “no cause of action,” and that such dismissal does not constitute res judicata.
Exceptions of this class are of two sorts : 1st, those which tend to the dismissal of-a suit because the allegations essentially necessary to warrant on proof the judgment prayed for are wanting ; 2nd, those which tend to the dismissal of a case in which, although all the essential allegations have been set forth, the judgment asked, even on full proof of the averments, cannot be rendered at all] unless in violation of law. In the former ease, it is within the sound discretion of the court to permit an amendment of the petition. It is generally exercised in favor of the amendment.
In the latter case, where it is found from the face of the petition, all of which must be taken for Irue, for the purpose of the exception, that the allegations, because self-destructive and irremediably insufficient, would not entitle the plaintiff to the relief sought, the exception is sustained, and the petition is usually either dismissed or rejected. In the first case, when the word “ dismissed ” is used instead of the word “ rejected,” it will be construed as meaning the latter, when sufficiently ■explained by the pleadings or by the reasons for judgment.
The exception of no cause of action, when’ affirmed, constitutes res judicata as effectually as if judgment had been rendered on the trial of the merits, after a full hearing of contradictory evidence on behalf of both parties. If it did not so mean, and was not so construed, then it would amount to a nonsuit, and the plaintiff would have authority to institute new proceedings. Why permit him to repeat uselessly allegations which'if proved would not entitle him to recover?
In the case invoked by the defendant as constituting res judicata, the main question presented was : Is the plaintiff in that case, and' in default of her, her husband, entitled to have the property seized for the payment of a debt secured thereon declared exempt as a homestead ? The petition in the case shows that the consideration of the judgment on which execution had issued, and which the injunction had arrested, was the purchase price of the identical property in question, such price remaining unpaid. The court held, in formal language, that where the *830purchase price of the property claimed as a homestead was not paid, the property will not, under the homestead law, be declared exempt from seizure and sale for the satisfaction of that purchase price. As a rule, courts, when dismissing a suit for want of sufficient proof in support of sufficient averments, should add the words as in case of nonsuit, lest the omission may be a cause of contrariety. The judgment sustained the exception of no caluse of action, and expressly rejects (C. P„ 319) the demand, and because the demand is thus disposed of and a writ of injunction issued on an inadmissible and illegal demand, which, on its face is discountenanced and disallowed, the Court dissolves the injunction with damages. This judgment terminates and set at rest forever the differences of the parties in relation to the matter agitated in the case before us, which is the homestead matter. C. P. 319 ; 5 N. S.. 664; 8 L. 187 ; 4 A. 231.
In deciding this case on its merits, we have enunciated clearly enough the same principle, that where the purchase price of the property claimed to be exempt under the homestead law has not been paid, the exemption will not be recognized. The non-payment of the price of sale is a good cause for the rescission of the contract. It is not until the price has been paid that title of ownership unconditionally vests in the purchaser. It is not, until then, that he can claim to have the property exempted from the payment of his debts, as his homestead.
In the case before us, the circumstance which existed when the first suit was brought, in which the judgment now pleaded as res judicata was rendered, remains unchanged.. The purchase price has not been paid. The property, therefore, even if the first case and judgment in it had no existence, could not be pronounced as exempt, were it only for that reason. We consider that the judgment maintaining the plea of res judicata is correct. Interest reipublicce ut sit finis litium.
We give credit to the ability with which the matter was presented from a different stand-point, but regret our inability to change our views in a case in which the plaintiff in his advanced age and troubles is entitled to sympathy. The letter and spirit of the law are, that the land unpaid for shall not be claimed as a homestead by the purchaser, unless the purchase price shall have first been paid. The principle of the moral law is, that no man can be permitted to enrich himself gratuitously, at the expense of another, against the latter’s will. It is our. sworn duty to construe, apply, and enforce the law which the assembled wisdom of the people has enacted as we find it in the statute-book, regardless of persons and of the consequences befalling its just enforcement. Dura lex, sed lex.
Further considering the matter, but on the defendant’s application for a rehearing, we find, after a careful examination of the record, that. *831it establishes the correctness of one of the points raised by the appellant as to the amount at issue, the execution to enforce the payment of which was enjoined. We find that the injunction restrained the enforcement of the writs as to all the property seized, and was not confined to the homestead claimed. The plaintiff in execution, appellant herein, is therefore, in our opinion, entitled to damages measured by the whole amount which was covered by the injunction, and not alone to the alleged value of the homestead. We shall therefore correct the judgment in this regard.
We adhere to our previous opinion and decree so far as it affects the claims for damages against John T. Ludeling, the surety on the injunction bond. He was before us in this appeal, having been duly cited. We could not examine the matters set forth in the motion to dismiss in that proceeding, but had to do so on the merits of the case.
We held that the judgment against Baker was not binding on Lude-ling, because he was not a party to the agreement whereby the case was to be decided in chambers, out of term-time, and because, for the reasons stated in our former opinion, he could not be liable. This appeal is from the judgment dissolving the injunction. If Ludeling was not bound by the agreement and by the judgment, which was irregular and nugatory as to him, and that very judgment could alone fix his liability herein, how can we assess damages against him, unless we arbitrarily supply what we deem to be a fatal defect ? The consent of the parties to the trial of the matter in which Ludeling was sought to be made liable, in the manner in which it was tried, without his assent, and the appellant having selected and adopted such course, we think operates as a discharge of the liability of the surety on the injunction bond, and that issue is distinctly presented in this appeal.
It is therefore ordered, adjudged, and decreed that our former decree herein be set aside, and that the judgment of the lower court be affirmed, so far as it dissolves the injunction and rejects the demands of W. J. Q. Baker, plaintiff, and refuses to allow damages from John T. Ludeling; but that in other respects it be reversed; and it is now ordered, adjudged, and decreed that the appellee be condemned to pay for the wrongful injunction ten per cent damages on the whole amount of the execution enjoined, and as set forth in the writ issued in suits Nos. 1219, 1358, and 1281, consolidated, and that W. J. Q. Baker, appellee, pay the costs of the appeal and of the lower court.