Lee v. Miller

Dewey, J. The single point of inquiry in this case is, whether the plaintiff had acquired a homestead estate in the premises before the debt to the defendant was contracted upon which the judgment was recdvered and the execution issued by virtue of which this levy was made. This debt was contracted July 20th 1861, before which period the plaintiff had made a declaration in writing of his intention to hold the premises as a homestead, and the same bad been duly recorded. The further inquiry is, whether that declaration was effective. On the part of the defendant it is denied that the plaintiff at the time of malting the declaration held such a relation to the premises as entitled him to make an effective declaration. To do so, he must have been a householder having a family, and the premises must have been occupied by him as a residence. But he 39 had only occupied the same with his family for the temporary purpose of cutting his hay and harvesting his oats; having thereafter returned to the house which he had occupied for many years in Goulding’s Village, and where he continued to reside as before, until October 1st 1861. The old house upon the premises had been taken down, and he was building a new one in the summer of 1861, when the debt to the defendant was contracted; but the premises were not then occupied as a residence by him. This debt existed before the homestead estate was perfected, and the estate was therefore not exempted from this levy. Plaintiff nonsuit.