
    Richard Jenness and others v. Joseph M. Cutler.
    January Term, 1874.
    1. Usury: Amount of Recovery. In an action on a note and mortgage given for money loaned, it is not error for the court to render a personal judgment against the payee of the note for the amount of money actually received by him on said* loan, although the note may be tainted with usury, and the mortgage void.
    2. -: Statutes: Construction: Contract Rights. Where a note was given, stipulating for usurious interest, under a statute under which all interest was forfeited for usury, and said statute was repealed before said note was sued on, and another statute was enacted in its place, authorizing contracts to be made for any rate of interest, but providing that only 12 per cent, interest per annum should be recovered in the courts, held, in an action brought on said note after said second statute was passed, that the statute under which said note was given governs; and all interest accruing on said note, or on the consideration for which said note was given, is forfeited, and the creditor can recover the principal only for which said note was given. [Ayres v. Probasco, 14 Kan. 187; School-district v. State, 15 Kan. 49; Challiss v. MeCrum, 22 Kan. 165.]
    .3. -. An agreement made November 3, 1870, to pay interest from and after November 3, 1871, at the rate of 12 per cent, per annum, (the highest rate allowed by statute,) on a note given for money loaned, calling for $1,650, when the whole amount loaned was only $1,380, is usurious.
    H. Principal and Surety: Extension of Time: Illegal Contract. It is ¡settled by an unbroken current of authority that where the creditor and principal debtor make a valid agreement for the extension of the time for the payment of a debt, without the consent of the surety, the surety will be discharged; but it is equally well settled that the agreement, to have such effect, must be valid and binding, and be founded upon a sufficient consideration. Therefore, under a statute which provides that “all payments of money or property, made by way of usurious interest, whether made in advance or not, shall be deemed and taken to be payments made on account of the principal,” where the creditor and principal debtor, after the debt has become due, make an agreement, without the knowledge or consent of the surety, that the time for the payment of said debt be extended for one year in consideration of the sum of one hundred dollars as a bonus over and above the highest rate of interest •allowed by law, paid, at the time of making said agreement, by the principal debtor to the creditor, said sum of one hundred dollars must, under said statute, be applied in part payment of the principal of said debt, the whole of which is already due; and therefore, there being no consideration for said agreement, the agreement is not binding, and the surety is not discharged. [Lathrop v. Davenport, 20 Kan. 287; Halderman v. Woodward, 22 Kan. 471; Hubbard v. Ogden, Id. 372; Prather v. Gammon, 25 Kan. 383.]
    5. Homestead: Mortgage for Debt of Husband: Surety. Where a husband and wife, for the purpose of securing a debt of the ^husband, join in the execution of a mortgage on their homestead, the title to which being in the husband, the wife does not thereby become such a surety of her husband as to be entitled to all the rights and privileges of other sureties; and if her husband and tire holder of the mortgage enter into a valid agreement for the extension of the time for the payment of said debt for one year, such agreement will not destroy the validity of the morlgage. [Citizens’ Bank v. Bowen, 21 Kan. 363.]
    
    [6.-: Wife’s Interest in. The interest or estate of the wife in the . homestead discussed.]
    
    Error from Franklin district court.
    Action by Cutler t.o foreclose a mortgage given by Jenness and wife to secure the payment of the following note:
    “$1,650. Ottawa, Kansas, Nov. 3, 1870. •
    “One year after date I promise to pay to the order of William E. Haxton sixteen hundred and fifty dollars, value received, payable at the banking-house of P. P. Elder & Co., Ottawa, with interest at the rate of 12 per cent, per annum after maturity, until paid.
    “Bichard Jenness.”
    The action was tried at the March term, 1873, of the district court. The court made separate findings of fact and conclusions of law. The conclusions of law are as follows:
    CONCLUSIONS OF LAW I
    “(1) The agreement to pay $1,650 in one year, for the sum of $1,380 received, was a usurious contract.
    
      “(2) The note was not signed by Haxton to the plaintiff before maturity, within the meaning of the statute.
    “(3) The extension of the time for the payment of $100 bonus by Richard Jenness to Haxton, after the maturity of the note, and without the consent of Sybil Jenness, the wife, did not release the security by mortgage.
    “(4) The plaintiff can recover only the sum of $1,280 principal, and interest thereon at 12 per cent, per annum after maturity of the note.
    “(5) The plaintiff is entitled to recover of and from defendant Richard Jenness, for principal and interest, the sum of $1,469.70, and also an attorney’s fee for $123, and to a decree against all the defendants for the foreclosure and sale of mortgaged premises.”
    
      *Mason é Parkinson, for plaintiffs in error.
    The plaintiffs here claim the judgment -below was erroneous and should be reversed, upon two grounds: (1) It was error to decree a foreclosure of the mortgage on the homestead; (2) it was error to compute interest on the promissory note set forth in the petition of the plaintiff below.
    The issue on the first proposition is whether, as matter of law, a wife is entitled to the rights of a surety in a mortgage on the homestead executed by the husband and wife to secure a note made by the husband for his individual debt, and not incurred for the erection of improvements, or any tax, or the purchase money of the homestead. In this state, concerning the right to or the mode of incumbrance or conveyance of the homestead, it is immaterial whether the husband or wife is the grantee, and holds the legal title. The character of the estate or interest of the husband and wife, and each of them, depends upon its being a homestead, occupied as contemplated by law; and their rights are equivalent in the property while it is a homestead. Neither can solely dispose of or incumber the premises. Morris v. Ward, 5 Kan. *239; Dollman v. Harris, Id. *597. It is settled by reason and authority that a wife who joins with a husband in a mortgage of her own property to secure his debts, or the payment of money loaned to him, is the surety merely of her husband, and is entitled to all the rights and privileges of a surety. Yartie v. Underwood, 18 Barb. 561; Gahn v. Niemcewiez, 11 Wend. 312; Hawley v. Bradford, 9 Paige, 200; Oakley v. Aspinwall, 2 Sandf. Ch. 29; Grinnell v. Suydam, 3 Sandf. 135; Bank v. Burns, 46 N. Y. 170; Smith v. Townsend, 25 N. Y. 479. The principle of these authorities is fully sustained by the statutory enactments of this state, and we apprehend the laws of Kansas in behalf of married women are susceptible of no other construction concerning her separate property in such case. In connection with the foregoing authorities see Rose v. Williams, 5 Kan. *483; Rees v. Berrington, 2 Yes. Jr. 540; Ludlow v. Simond, 2 Caines, Cas. 57.
    
      To properly decide the merits of this question, a more elaborate definition, if not consideration, is required of the homestead estate than has thus far been decided. Here the homestead is to be considered, not only as *a foundation of a unity of interest, but of respective rights as well; and the rights of husband and wife diverge into that of rights incidental to strangers, if either see fit to legally assert them. The homestead is classed, in various treatises on real estate, as an estate by marriage. In Kansas, however, it may or may not grow out of the marital relation.- The owner of a homestead, and head of a family, are not necessarily married persons, and may never have been married, to be entitled to the benefits of the exemption laws of this state. The homestead estate differs widely from the estates by marriage known to the common law. The estate by curtesy and dower only attaches after the determination of the coverture. If the relation of husband and wife exists, the interest or estate, whatever it may be, exists as to the homestead, except, perhaps, in some instances, where the wife has not resided in the state. Instead of it being an estate dependent on a contingency which may happen, and may be curtesy or dower, as the coverture may by the death of the husband or wife determine, the homestead estate is in the present, and not in future. In the two estates of curtesy and dower only the inchoate right exists during the coverture. In the homestead, not the right to the interest, but the estate, is in being. It depends not on any contingency, except the occupation of the premises by the family of the owner as required by the law. The circumstances which create the latter estate are- those which defeat the former estates by marriage, and acts might be performed under claim to curtesy or dower at the common law which would defeat the estate of the homestead if allowed. As to tenancy in common, the homestead is only analogous in that possession and seizure may be in common. In all other incidents there is no analogy. Yet if it is a joint tenancy, ora tenancy in common, assuredly Sybil Jenness is, upon the facts, discharged from all liability, as well as her property. While it is not such estate, we claim that in all essentials of right it is an estate which the magnitude given it by modern enactments entitle to ail the protection of other estates. The homestead is a species of estate unknown to the common law'. *Within the past score of years it has grown into being in the United States, and is now in some form, feature, or degree the law in more than two-thirds of the states. It is the great charter of security to the family and society, and the legitimate outgrowth of the ■civilization of the day. It is created and preserved by the constitution and the law of the times; and the construction of its elements, principles, and incidental rights can find no authority in the cramped spirit which pervaded the interpretation of estates at the common law. It must be viewed and defined in the light of the generation which gave it birth. It cannot have or possess principles in common with an age where all the legal rights in property of husband and wife were so different from that of the age in which we live, where the very enactment of the homestead law intends to contravene the rights hitherto conceded to the husband.
    By the- common law, the husband, by marriage, acquired rights to-property, and the wife, while dispossessed of rights to personalty, lost the control of her lands, which was merged during the coverture in the husband. His-interest in her lands, because uncertain in duration, was regarded as a freehold, and that interest he could control, although the reversionary interest was in the wife. In Kansas, instead of acquiring rights to the property of the wife by marriage, he acquires neither property nor control during the coverture, but the-fundamental law of the state places the title and control of his own* lands (if it be a homestead) where he can exercise no right of alienation or incumbrance without the joint consent of the wife'; and, furthermore, the law of the state defines in express terms, in case of the survivorship of the wife, what it does not expressly define in the case of the survivorship of the husband. “The homestead shall be wholly exempt from distribution under the law of this state, and from the payment of the debts of the intestate, but shall be the absolute property of the widow and children,” etc. Gen. St. c. 33, § 2. The interest of Sybil Jenness, the wife, in the premises, is no uncertainty.. It is a fixed, vested estate, only limited in law *with that of the husband. Notwithstanding he may hold the legal title, it. is a species of estate created by the law, for the wise purpose heretofore referred to. Vested to that extent, no act of hers alone, or his alone, can divest it; and, lacking only in this, the right of a fee-simple, as it were, both husband and wife are necessary to convey the estate. In case of survivorship, however, she becomes with the children the owner of the absolute fee-simple. The interest of the-wife then is in prcesenti. To all intents and purposes of enjoyment of the estate, she is lawfully seized, and that interest can only be divested as the law contemplates it may be done. It is not a mere contingency in which she may acquire an estate, if a certain event-should occur.
    It remains to be discussed whether, by the act of executing and delivering the mortgage in question, Sybil Jenness parted with her interest in the homestead, and is estopped from thereafter reclaiming her interest in the property. Except' that this is a homestead, not separate property, we see no difference in the facts, substantially, as-appeared in the case of Bank of Albion v. Burns, 46 N. Y. 170. The act which incumbered the separate property of the wife in that case w7as of the same character as at bar. ' If the premises here had been the separate property of Sybil Jenness, the act of alienation or ineumbrance would have been of no different or higher nature than the making of the mortgage in the facts found by the court. In either the mortgage was signed by the wife for the same purpose. Tn either the security was only created by the act of his wife to secure the debt of the husband, and without that signature the debt would simply be the debt of the husband, unsecured. If she was not a principal, then any act by which she created a liability on her part, or on her rights or property, could place her in no other position than that of a surety. The mortgage itself being a security, the maker of it not being a principal on the note, was a surety only. If the note was paid according to the terms of it, as it then stood, the mortgage was required to be canceled, .and in law and equity her rights were immediately restored. If she *signed the mortgage security as a surety, then she is entitled to all the rights and privileges as a surety. The right of a surety is strictissimi juris, although mere lapse of time will not discharge a surety. The holder of a promissory note makes at his peril a new and valid agreement or contract without the consent of the surety. With the facts before this court, the plaintiffs here are entitled to any rights against the holder of the note they could have asserted against the original payee. It was not negotiable paper transferred before maturity. It was an agreement, for a consideration then paid, to extend the time of payment, and the contract as it was originally made and originally secured ceased to exist. The creditor had placed himself where he couid not enforce the original contract, and the new agreement, if the note had been attempted to be collected before the period of the extension expired, could have been set up by the principal debtor and abated the suit. The debtor is not in equal wrong. He is entitled to any rights, in our view, that attach to any contract for which a consideration had been paid, and the creditor cannot take advantage of his own wrong in such case. La Farge v. Herter, 9 N. T. 241; Freeman v. Freeman, 43 N. T. 36; Moore’s Heirs v. Ridgeway, 1 B. Mon. 235. The valid agreement to extend the time estopped the holder of the note from his action on the original security at the time. As the record shows, the agreement was performed, and tbe suit not brought until the expiration of the extension, and it is too late for the usurious creditor to be benefited in his rights, when the contract is fully performed by the parties to it. If the lapse of time varied tbe risk, it was a variance of the contract, and should, discharge the surety. Waters v. Stewart, 2 Caines, Cas. 57.
    If it is claimed the agreement to extend payment was void on the ground that the contract was usurious, we reply that the test of this question is whether the new agreement was of advantage to the debtor; whether it was an agreement by which he obtained any rights other than existed upon the original contract. It is true, a payment over and above the legal interest might be recovered back without interest, but there were rights he could enforce which the creditor could *not. If it was good for an extension of time as against the creditor, then- it was a good contract, and the consideration formed in law some consideration, and sufficient to the parties making that agreement. Whether the surety sustained loss or not by such contract, and even though benefited by the contract, she may take advantage of it. Gahn v. Niemcewicz, 11 Wend. 312. The facts as found by the court do not warrant the assumption that the latter agreement was usurious. The one hundred dollar payment was intended to be, as the fact is found, a consideration for extension of time; and the intention of the parties to the agreement ought to govern.
    The note was made on the third of November, 1870, at a time when the transaction, if usurious, was entitled to no interest. Gen. St. c. 51. It should be governed by the law existing at the time it was made. It was not a mere inchoate right, derived under a statute, and therefore as a remedy likely to be taken away by subsequent legislation. The question is, was it a usurious contract when made? If so, the finding of interest was giving to a late statute a retrospective application in regard to an existing contract. If the interest is allowed because of the later contract, then it is error as against the rights of Sybil Jenness in the premises.
    
      Welsh é Benson, for defendant in error.
    The homestead exemption is a limited one. It extends to the general indebtedness of the owner; but as to the excepted cases, that is, to “liens given by consent of both husband and wife,” there is not and never was any exemption, and the common-law rule that subjects the debtor’s property to the payment of his debts must apply. Counsel for plaintiffs in error seem to assume that the exemption covers a case like this, and therefore that, when the year for which the mortgage was given expired, Mrs. Jenness was reinvested with her homestead rights, whether the mortgage was paid or not; that the mortgage was but a suspension of a vested right. The fallacy of this reasoning is shown in the fact that, when the lien is given by joint consent of husband and *wife, the case then falls within the exception, and as to such excepted case there is no exemption provided by constitution or statute. Olson v. Nelson, 3 Minn. 53, 59, (Gil. 22.)
    If, then, the case is to be treated “as though the exemption never existed,” clearly Richard Jenness could contract for an extension of the time of payment without invalidating the mortgage security, since it is to be considered precisely the same as though it covered other than homestead lands, and the lien holds good until the mortgage is satisfied. 2 Pars. Cont. 219; Pomry v. Rice, 16 Pick. 22; Bemis v. Call, 10 Allen, 512.
    The agreement to extend the time of payment was usurious and void, and a surety (if any there was) could not be released thereby. Yilas v. Jones, 1 N. Y. 274, 286; Meisminkle v. Jung, 30 Wis. 361; Ives v. Bosley, 35 Md. 262; Ives v. Bosley, 6 Amer. Rep. 411; Allen v. Jones, 8 Minn. 202, (Gil. 172;) Brown v. Harness, 16 Ind. 248. If it is still insisted that Mrs. Jenness was a surety, it is difficult to see' how she can avoid the operation of this principle. When Richard Jenness paid the $100 to extend the time of payment for one year, in addition to the interest stipulated in the note, the law was imperative that it should be held as a payment upon the principal. Applying this law to the fact, the case stands thus: Richard Jenness, on the third of November, 1871, paid on the note in controversy $100, for which he was entitled to a credit, and upon the trial of the case obtained such credit by decision of the court. Can it be urged that this transaction discharged Mrs. Jenness, who claims to be a surety, or the mortgage, in the execution of which she voluntarily joined? It would seem that, instead of prejudicing her rights, the payment was to her benefit, as releasing the incumbrance pro tanto. But Mrs. Jenness does not stand in the relation of a surety, as claimed by plaintiff in error. The lands in question were not her separate property. She merely consented to the giving of the lien upon her husband’s property in which she otherwise had homestead rights. The mortgage so given by “joint consent of husband and wile” was an actual conveyance of the fee, to be defeated only upon the performance of the condition named, viz., the payment of the debt. It was never paid. A surety is “one who is bound *with and for another.” Mrs. Jenness was not so bound. The full legal effect of her execution of the mortgage was a consent that her husband might incumber the property for the payment of his debt, thereby taking the homestead out of the general scope of the homestead exemption act, and bringing it within the exceptions named in said act.
    We understand the allowance of interest after maturity, after deducting the amount paid by way of usurious interest, was correct under our statutes, and do not argue the proposition.
    
      
       Where a wife executes a mortgage upon her own real estate for the purpose of securing the individual debt of the husband, she is surety of her husband to the extent of the property which she mortgages. Burtis v. Wait, 6 Pac. Rep. 783; Hubbard v. Ogden, 22 Kan. 363. See Randal v. Elder, ante, *267, and note.
    
    
      
       See Leavenworth v. Stille, 13 Kan. 548. The right of the wife to maintain an action, 'during the life of her husband, to prevent its wrongful alienation or disposition under fraudulent judgments, determined. Busenbark v. Busenbark, 7 Pac. Rep. 245.
    
   Valentine, J.

This was an action on a note and mortgage. The note was given by Richard Jenness to William E. Haxton, and assigned by Haxton, after due, to Joseph M. Cutler. The mortgage was given by said Richard Jenness and his wife, Sybil Jenness, to said Haxton, to secure the payment of said note. The note called for $1,650, was dated November 3, 1870, was due one year after date, and drew interest at the rate of 12 per cent, per annum after maturity. The mortgage was given on property belonging to Richard Jenness, and occupied by himself and wife as a homestead. The action was brought by Cutler against Jenness and wife. Jenness pleaded usury, and his wife pleaded that the mortgage was void. The trial was had before the court without a jury. The court found that the consideration for said note was $1,380 in money loaned by Haxton to Jenness, and that the other $270 of said note was for interest agreed to be paid by Jenness to Haxton for the use of said $1,380 for one year. The court also found that Jenness, on the third day of November, 1871, (the day on which said note became due,) paid to Haxton the sum of one hundred dollars, in consideration of which Haxton agreed to extend the time for the payment of said note for another'year. No other payment was made. Judgment was rendered April 17, 1873. If the judgment had been rendered in accordance with the contract between the parties, it would have been *rendered for $1,938.75; but, as the contract was tainted with usury, the court rendered judgment for only $1,469.70, $1,280 of which was for money actually received by Jenness, and the other $189.70 was for interest. This judgment was a personal judgment against Richard Jenness alone. The court also rendered judgment for an attorney’s fee, and for costs, and ordered that the mortgaged property should be sold to satisfy said judgment. But the defendants below, Jenness and wife, claim that said judgment is erroneous — “First, because no judgment of any kind should have been rendered against them, or either of them; second, because no judgment should have been rendered against Richard Jenness for any interest; third, because no judgment should have been rendered against them, or either of them, ordering the mortgaged property to be sold to satisfy said money judgment.”

1. The court below clearly did not err in rendering said personal judgment against said Richard Jenness for said sum of $1,280, however usurious the note may have been, and however void the mortgage may have been. A personal judgment is always rendered in foreclosure cases in this state, (Civil Code, § 399, amended by laws 1870, p. 175, § 13; Clemenson v. Chandler, 4 Kan. *558; Gillespie v. Lovell, 7 Kan. *423, *424;) and the most rigid and penal usury law that was ever enacted in Kansas would allow judgment to be rendered for said amount. It was the amount which Jenness had actually received from Haxton nearly two and one-half years prior to the rendering of said judgment, and for which he had paid no interest, and of which he had paid no portion. Whether any error was committed in rendering the judgment for said attorney’s fee or for costs does not appear from the record brought to this court. Therefore, as to the $1,280, and the attorney’s fee and the costs, the judgment of the court below must be affirmed.

2. Did the court below err in rendering judgment against Richard Jenness for interest on said $1,280 ? At the time said note was given, and at the time said $100 was paid, the statutes of Kansas did not authorize more than 12 per cent, interest per annum to be eontraeted for or paid on any *debt due, or to become due. Said statutes alsó provided, among other things, as follows: “Any person contracting, by promissory note, bill of exchange, bond, or otherwise, to receive a greater rate of interest than that allowed by this act, shall forfeit all interest, and shall recover no more than the principal of such note, bill, bond, or other contract.” Gen. St. 526, c. 51, § 4. The statute in force when this suit ivas commenced, and when this judgment was rendered, allowed parties to contract for any rate of interest they might choose, but did not allow the creditor to recover for more 'than the principal, and interest at the rate of 12 per cent.'per annum. Laws 1872, p. 284, c. 134. This latter statute took effect, and the prior statute was repealed, June 20, 1872. Now, which of these two statutes governs in this case? or does either or neither? or partly one and partly the other? For the .purposes of this case we shall assume that no person cah have a vested right in the privilege of repudiating his contract, and pleading usury; that an act of the legislature requiring or permitting a person to perform his contract previously made, although a usurious contract, is not an act impairing the obligation of- such contract; that an act of the legislature providing that all interest shall be forfeited where the creditor has contracted for more than legal interest is in the nature of a penal statute, and may be repealed or modified by subsequent legislation, so that a creditor who has contracted for more than legal interest during the continuance of such statute may, after its repeal or modification, collect the amount of interest for which he contracted, (see cases cited in-Cooley, Const. Lim. p. 376, note 1,) añd still we do not think that the repeal of said first-mentioned statute, dr the change in the usury laws in this state, can affect any question involved in this case.

The law in force when the said usurious contracts were made, is the one that governs in this case. In this state the repeal of a statute is not an absolute repeal, unless the legislature says so in unmistakable language. In this state “the repeal of a statute does not revive a statute previously repealed, nor does *sueh repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced; under or by virtue of the statute repealed.” Gen. St; 998, c. 104, § 1, sub. 1; State v. Boyle, 10 Kan. *113, *116; State v. Crawford, 11 Kan. *32. Every penalty incurred under an existing statute remains after the repeal of the statute, unless taken away by the legislature by language that cannot be misunderstood. The repeal-of the usury law in the present case was in the ordinary language used in such cases by the legislature, and therefore we think' that the penalties already incurred under it were not taken away by such repeal, but remained in full force. The penalty for agreeing to take usurious interest, we suppose, is always incurred when the usurious contract is made. The penalty attaches because of the usurious agreement, and not for any other reason, and therefore it must be incurred when the usurious agreement is made. The court below did not allow the plaintiff the $270 agreed to be paid by Jenness as interest for the first year, nor the $100 agreed to be paid as additional interest for the second year, nor interest on $1,650, the face of the note, nor even interest on any amount for the first year, but- allowed interest only on $1,280 after the maturity of the note, which was the second year after the money was received; but even this we think was erroneous. The usurious contract avoided all interest. And the agreement to take interest at the rate of 12 per cent, per annum on $1,650, when’only $1,380 was loaned to Jenness, was as usurious as any contract could be. The sum of $1,380, with 12 per cent, interest for one year added, would amount to only $1,545.60.'

3. Did the court below err in ordering the mortgaged property to be sold to satisfy said judgment ? This question involves at least two ■others: First. Was said contract for the extension of the time for the payment of said note a valid and binding contract ? Second. And if it was, then did such contract destroy the validity of said mortgage ? did it cancel all the legal obligations imposed by its terms, and render the same nugatory ?

It will *be remembered that said note was due when said $100 was paid, and that it was paid as a bonus, or as an additional amount over and above the highest rate of interest allowed by law, for the purpose of having the time for the payment of said note extended one year. At the time said $100 was paid the following statute was in force, to-wit: “Sec. 3. All payments of money or property made by way of usurious interest, or of any inducement to contract for more than twelve per cent, per annum, whether made in advance or not, shall be deemed and taken to be payments made on account ■of the principal; and the courts shall render judgment for no greater sum than the balance found due after deducting the payments of money or property made as aforesaid, without interest.” Gen. St. 526.

Now, as the law applied said $100 in part payment of the principal of the debt from Jenness to Haxton, and as Haxton was, at the time he received tlie same, entitled to the whole of the principal, the payment of said one hundred dollars could not be a sufficient consideration for any contract.. It was only a part payment of what he had a legal right to demand and receive at the time he received it, and therefore the agreement to extend the time for the payment of said note was without consideration, and was not binding upon any one. It is certainly settled by an unbroken current of authority that where the creditor and principal debtor make a valid agreement for the extension of the time for the payment of a debt, without the consent of the surety, the surety will be discharged. But it is equally well settled that the agreement, to have such effect, must be valid and binding, and founded upon a sufficient consideration. No void contract, and no contract not founded upon a sufficient consideration, can release the surety in any case. Vilas v. Jones, 1 N. Y. 274, 286-289; Ives v. Bosley, 35 Md. 262; Meiswinkle v. Jung, 30 Wis. 361; Brown v. Harness, 16 Ind. 248; Mitchell v. Cotton, 3 Fla. 134; Hunt v. Postlewait, 28 Iowa, 427; Davis v. Graham, 29 Iowa, 514; Waters v. Simpson, 7 Ill. 570; Galbraith v. Fullerton, 53 Ill. 126; Burke v. Cruger, 8 Tex. 67; Hunter v. Clark, 28 *Tex. 159; Miller v. Stem, 2 Pa. St. 286; Mathewson v. Strafford Bank, 45 N. H. 104; Wheeler v. Washburn, 24 Vt. 293; Joslyn v. Smith, 13 Vt. 353; Kyle v. Bostick, 10 Ala. 594; Cox v. Mobile R. Co., 37 Ala. 320; Jenkins v. Clarkson, 7 Ohio, 72; Tudor v. Goodloe, 1 B. Mon. 323; Pyke v. Clark, 3 B. Mon. 262; Anderson v. Mannon, 7 B. Mon. 219; Patton v. Shanklin, 13 B. Mon. 15; Nichols v. Douglass, 8 Mo. 49; Ford v. Beard, 31 Mo. 459; Hoffman v. Coombs, 9 Gill, 284; Newell v. Hamer, 4 How. (Miss.) 684; Payne v. Commercial Bank, 6 Smedes & M. 24; Wadlington v. Gary, 7 Smedes & M. 522; Haynes v. Covington, 9 Smedes & M. 470; McGee v. Metcalf, 12 Smedes & M. 535; Coman v. State, 4 Blackf. 241; Farmers’ Bank v. Raynolds, 13 Ohio, 85; 2 Pars. Cont. 26, note f; King v. Baldwin, 2 Amer. Lead. Cas. 415. Under the statutes of some of the states, however, the receiving of usurious interest, or the taking of other securities for such interest, with an agreement to extend the time for the payment of the debt, is considered a valid and binding contract, such as will discharge the sureties from the payment of such debt. Duncan v. Reed, 8 B. Mon. 382; Robinson v. Miller, 2 Bush, 179 ; McComb v. Kittridge, 14 Ohio, 348; Blazer v. Bundy, 15 Ohio St. 57; Turrill v. Boynton, 23 Vt. 192; Cox v. Mobile & C. R. Co., 44 Ala. 611; Redman v. Deputy, 26 Ind. 338; Calvin v. Wiggam, 27 Ind. 489. Such is held where the contract is already executed, where the creditor has already received the usurious interest, where there is no action to recover it back from the creditor, and where it is not applied as payment or part payment of the principal, as in this state. Therefore neither the statutes of said states, nor the decisions of the courts under such statutes, have any application to this ease. Of course, the payment of legal interest on a debt, before such interest becomes due, may be a valid consideration for a contract to extend the time for the payment of the principal. So may also the payment of a part of the principal before the same has become due. But to make a payment which, either by law or by the parties, is applied on the principal, after the *principal has become due, can be no consideration for any contract.

But supposing the contract for the extension of time for the payment of said note was a valid contract, then did it annul the provisions of said mortgage ? A very able and ingenious argument has been made by counsel for plaintiffs in error, for the purpose of showing that it did. We have also read a very able and elaborate printed argument of counsel for plaintiff in error in the case of Pennock v. Haxton, (not yet submitted to us,) maintaining the same doctrine. These arguments cannot easily be met or overturned. And yet the doctrine that they promulgate is so novel and startling that it is difficult to believe that they are sound. It is claimed that Mrs. Jenness, by joining with her husband in executing said mortgage, virtually became the surety of her husband; that the contract between Haxton and her husband for the extension of the payment of said note was a valid contract, (this we now assume as true, for the purposes of this argument, though we think it is not true in fact;) that, as such extension was without the knowledge or consent of Mrs. Jenness, such extension released her as surety for her husband; that such release destroyed her previous consent given by her to have said property pledged and sold for the payment of said debt; -that, ás a mortgage of .the homestead, to be valid, must have the consent of both .husband and wife, this mortgage, which no longer had the consent of the wife, became void; and therefore that it could not, after it became void, be foreclosed as against either; the husband or wife.

The first question for our consideration, and the controlling one, is whether Mrs. Jenness was such a .surety for her husband as to be em titled to all the rights and privileges of other sureties. We do not think she was. But, before we proceed further, we would say that the mortgaged property belonged solely to her husband, and no part of it belonged to her, except that she and her husband occupied the same as a homestead; that the debt secured by the note and mortgage *was solely her husband’s debt; that she did not sign the note, but that all she did was to join with her husband in executing said mortgage. Now, under such a state of facts, was the wife a surety? We suppose she might be said in one sense to be the surety for her husband, but in a very remote and attenuated sense, and not at all in the sense in which the word is used in the law. We suppose it may also be said that the wife has in one sense an estate in the homestead occupied by herself and husband, although the title to the same may be in her husband; but still, if it is an estate, it is such an estate as has never been defined by law, — an estate unknown to the common law, — technically no estate at all. The whole estate in such a case is in fact wholly in the husband, with merely a restriction for the benefit of his family upon his power to alienate the same. It is true, the wife has an interest in the homestead, — a present and existing interest, — an interest that will be protected by the courts; but it is simply an interest growing out of the marriage relation and has no other or different foundation than the marriage relation and occupancy. It requires no instrument in writing to create such an in-interest, nor does it require any instrument in writing to destroy it. A merely going upon the premises, and occupying the same as a homestead, will create the interest. The abandonment of the premises as a homestead will destroy -the interest; and, if the wife should die while occupying the premises as a homestead, she would have nothing that would descend to her heirs, or go to her executors or administrators, and nothing that she could devise or bequeath. The whole estate would continue to belong to her husband, and after her death he could sell and convey the same by a deed executed by himself alone.

As we have before said, the wife has a present and existing interest in the homestead, such as will be protected by the- courts; but so she has in all the other property of her. husband. Every husband is bound to support and maintain his wife where she has not other means ample to support herself;, and all his property, real and personal, not exempt from execution, is under continual pledge, for.such *support. - Even.where she abandons him for just cause, any ■ person may furnish her with necessaries, and look to her husband’s property Jor compensation; and in many cases, she. may sue him direct’y for the means of support. Civil Code, §§ 649, 639. The action in such a case is called an action for alimony; and in such action the court may restrain by injunction the disposition of the husband’s property pending the litigation. Code, § 644, and sections 237-249. Now, notwithstanding this present and existing interest of the wife in all the property of the husband, still no one has ever yet supposed that the wife was such a surety for her husband that if a creditor of her husband should, by a valid agreement, extend the time for the payment of her husband’s debt, that the creditor would thereby release all her husband’s property from the payment of such debt. Even in states where it is necessary for the wife to sign a mortgage of real estate not a homestead in order to bar her interest in such real estate, no one has ever yet supposed that, by such signing, she became such a surety for her husband that she was entitled to all the rights and privileges of other sureties. Indeed, it has never been held in any state that a wife could become a surety, entitled to all the rights and privileges of other sureties, unless she pledged some portion or all of her own separate property.

This cause will be remanded to the court below, with the order that the judgment of the court below be so modified as to correspond with this opinion.

(All the justices concurring.)  