Field, C. J. concurring.

1. This was ejectment for a lot in Shasta; the defendant, as *406 widow of one Young, claiming a right of homestead under the late law in respect to homesteads. She and her late husband were mulattoes; and the point was made below that the Homestead Act did not apply to such persons. But, even if the plaintiff, claiming through her husband, could raise this objection, we think there is nothing in it. Neither the Constitution nor the act of the Legislature makes a distinction in this respect, and the Courts have no authority to do so.

2. The plaintiff claims through a Sheriff’s deed, made upon a sale by execution under judgment against Williams, who, in his lifetime, held with his wife, the defendant, possession of this property as a homestead.

If this property was the homestead of the family it could not be sold at forced sale; and the wife—there having been no abandonment of the premises, might set up this fact; as might, indeed, the husband himself, as against the claim of the purchaser at such sale. But it is said that the judgment under which the sale was had was obtained for all or a portion of the purchase money. The respondent insists, and the learned judge below held, that this circumstance is enough to give the purchaser here the right to the property as against the tenant under the homestead claim. Unquestionably, if this purchase money constituted a debt which was a lien on the property before the homestead character attached to it, neither the husband nor the wife could hold this property except in subordination to this lien. But the mistake is in supposing that the lien gives any right of entry or title; it is a mere hold, or a claim to subject the property to sale—the title and the right of possession remaining with the debtors until such sale. It is, also, a mistake to suppose that a sale by the Sheriff, under judgment at law for the purchase money in the usual form, is an enforcement of this lien. The Sheriff merely sells the interest of the defendant in the property when that interest is a leviable estate; but the sale does not pass the equity which the plaintiff had to have the land sold to pay the purchase money, which was a charge upon it. The title, which comes from the enforcement of the lien, can only enure after proceedings to enforce the lien; and there must be a proceeding in the nature of a chancery suit to settle the sum due, and have the lien declared and a sale decreed. This does not seem to have been done.

Judgment reversed and cause remanded.