Kensell v. Cobleigh

Clark, J. An extent may be made subject to the homestead right when no application is made to have a homestead set out and assigned. Fletcher v. The State Capital Bank, 37 N. H. 369. If a homestead is demanded, and the right is denied, provision is made by s. 20, c. 138, Gen. Laws, for the determination of the right. If a creditor, instead of determining the question of the homestead right in the statutory mode, extends his execution upon the whole property, disregarding the demand for a homestead, he incurs the risk of having his extent defeated in the event the homestead right is maintained. If the right exists, the extent is void as to the homestead; and being void as to the homestead, it is void as to the residue. The homestead right being exempt *300 from attachment and levy, or sale on execution, the extent is illegal and wholly void as against the debtor, and no title is acquired by it. Fogg v. Fogg, 40 N. H. 282; Tucker v. Kenniston, 47 N. H. 267. Northumberland claims title to the premises embraced in the plaintiffs’ mortgage under a levy of an execution against Cobleigh. The case finds that a homestead right existed in the premises at the time of the levy, and that a legal demand for an assignment of a homestead was denied. The extent, therefore, was void as against Cobleigh, and Northumberland acquired no title by it. The'plaintiffs and the town of Northumberland both claim title under Cobleigh, and Northumberland’s title fails, and the plaintiffs are entitled to a decree of foreclosure. Decree accordingly. Allen and Carpenter, JJ., did not sit: the others concurred.