¶1delivered the opinion oe the court.
¶2The debts of J. S. Smith to Hogden’s executor were contracted in January, 1866. The land, for the part purchase-*246price of which the notes held by said executor were executed, was purchased by said Smith at the same time.
¶3The homestead act invested Smith with the right to a homestead out of said land, subject to the payment of the debts owing by him on the 1st of June, 1866. He did not lose this right by reason of subsequently becoming indebted to appellant.
¶4The vendor’s lien being satisfied by a sale of a portion of the land, Smith is then entitled to his homestead.. If any land is left after the same is assigned, Gardner may subject it to the payment of his debt.
¶5This court, as at present constituted, concurs with the reasoning of Judges Robertson and Peters in the case of Webster v. Bronston, trustee, &c. (5 Bush, 521).
¶6Judgment affirmed.