¶1Baldwin, J., concurring.
¶2It appears, from the record, that in February, 1857, the defendant, J. M. Buffington, was in business as a grocer; that whilst so in business, he became indebted to Drew in the sum of a thousand dollars, which he secured by a mortgage on his homestead; that on the thirteenth of October following, attachments for sums, amounting in the aggregate to over eleven thousand dollars, were issued in suits against him; that, after several of these attachments had been levied on his store, he took the money which he had and paid off the debt to Drew, which was then past due, and thus satisfied the mortgage.
¶3*494” The complaint alleges that the defendant was insolvent at the time, and that the payment was made to hinder, delay, and defraud his creditors’’,' that the several suits went to judgment, and upon them only the sum of three thousand five hundred, and sixty-six dollars was ever collécted; that the plaintiff has leviecT upon the homestead, which is not worth five thousand dollars,' and concludes with a prayer that the premises may be sold for the satisfaction of his judgment.
¶4\\The answer of the defendant denies his insolvency at the time of the payment to Drew, and all intent to hinder, delay, and' defraud his creditors. We place very little weight on this last denial; The intent of" the party must be gathered from the transaction. The language of the facts will be regarded, rather, than the assertion of the party. If such intent existed, it must be inferred from the acts of the defendant. (Hendricks v. Robinson, 2 John. Ch., 301.)
¶5} Nor do we place much weight upon the allegations as to the insolvency of the defendant. The only proof offered on this point was the record of the proceedings and judgments in the several suits against the defendant. This was not conclusive; but, for the disposition of this case, we shall assume the fact that his insolvency was established, and upon this assumption, it is difficult to perceive how the payment of a debt which he justly owed, and which was past due, can be tortured into an act to hinder, delay, and defraud creditors. The debt was as sacred, as any other debt," the obligation to pay it as binding, and even if its payment constituted a preference, there is no rule of law which prevents a debtor, in insolvent circumstances, from the application of his property to the payment of one debt rather another. (Dana v. Stanfords et al., 10 Cal., 269; Nicholson v. Leavitt, 4 Sand., 252; Covanhovan v. Hart, 21 Penn., 495; Worland v. Kimberlin, 6 B. Monroe, 608; Kinnard v. Adams, 11 B. Monroe, 102.)
¶6But it is urged, with apparent confidence in the conclusive character of the position, that the payment resulted to the benefit of the defendant, as it relieved his homestead of the incumbrance, and consequently of liability of being sold for its satisfaction. We confess our inability to see what difference this can make in the transaction. The obligation to pay the debt was none the less binding because it was secured by a mortgage, and if a lien was removed from the homestead, it was but the consequence of an act lawful in itself. The payment conferred upon the debtor no new right. He owned the homestead, free from liability, before the debt to the plaintiff was contracted, and he simply restored its former exemption by paying a debt which he had incurred upon it's security." The case of Riddell v. Shirley, (5 Cal., 488,) is a very different one from this. In that" case, there was a fraudulent and conclusive sale of the debtor’s *495property to discharge liens upon his homestead; the vendee was not a creditor receiving payment of a debt; and no claim against the homestead was asserted. The opinion expressly excepts from its conclusion a case like the present. “ To make this case,” very justly observes the learned counsel of the respondent, in his brief, “ at all like Riddell v. Shirley, the plaintiff ought to sue Drew to get the money back which the defendant paid him, but the absurdity of such a proceeding is too apparent to need any comment.”
¶7Judgment affirmed.