Swan v. Stephens

Wells, J. Upon the statement of facts it is clear that the tenant acquired an estate of homestead in the dwelling-house and lot of land purchased in 1854; and that he had no such ight in the second parcel, purchased in 1857. The demandan# [9] is therefore entitled to have judgment for full possession of the second parcel; and also for the other parcel, subject to the rights of homestead in the tenant and his family; unless this result is required to be modified by some of the considerations urged by the respective parties. St. 1855, c. 238. St. 1857, c. 298. 1. The tenant denies the validity of the sheriff’s sale, because not made expressly subject to the estate of homestead. Gen. Sts. c. 104, § 11. But as the sale would necessarily be subject to the homestead right, whether so declared or not, we are oí opinion that the omission to make it so, expressly, does not operate to invalidate the sale altogether. It could in no way prejudice the rights of the debtor, nor could it affect his means of enforcing or enjoying his estate of homestead. 2. The tenant contends that, as it is not shown that the premises subject to the right of homestead exceed eight hundred dollars in value, the demandant does not appear to have any present right of possession therein, and cannot have any judgment for the same. But the demandant is the general owner, entitled to possession of the whole, except so far as the tenant’s special title may exclude him. Until the homestead has been set out to the debtor, he and the owner of the residue are in the relation to each other of tenants in common. Silloway v. Brown, 12 Allen, 30. If the tenant seeks to establish an exclusive right to any part of the premises as a homestead, it is for him to show that that limited right is sufficient to cover the entire parcel so claimed. Wolcot v. Knight, 6 Mass. 418. Jackson on Real Actions, 160, 161. 3. The tenant also contends that, as to the parcel subject to the homestead right, the action cannot be maintained without evidence of an actual disseisin. But he has pleaded the general issue only; and, under that plea, is estopped to deny that he was in possession of the whole premises and claiming a freehold therein. Gen. Sts. c. 134, § 5. Higbee v. Rice, 5 Mass. 344, 351. Washington Bank v. Brown, 2 Met. 293. Devens v. Bower, 6 Gray, 126. 4. The demandant contends that the tenant has parted with uis homestead right bj the mortgage, in which his wife joined [10] to release all right of homestead. But the demandant has not acquired it; and the effect of such a release can be nothing more than to subject the homestead, as well as the residue of the estate, to the payment of the mortgage debt. .5. The demandant also contends that the tenant cannot avail himself of his homestead right, in this suit, because he has failed to specify the same under his plea of nul disseisin. In the case of Castle v. Palmer, 6 Allen, 401, 405, the court suggest a question whether such a specification should not be made. The reason assigned for requiring it is, “ in order to have the propel judgment entered.” But the judgment is always entered according to the findings upon the issue tried. “ The demandant may recover any specific part of the premises, or any undivided portion thereof to which he proves a sufficient title, though such part or portion is less than is demanded in the writ.” Gen. Sts. c. 134, § 10. Nul disseisin puts the whole title in issue. This issue may be maintained by the tenant on his part, either negatively, by disproof of the title set up by the demandant, or affirmatively, by proof of title in himself. One mode is just as strictly within the issue as the other. If, upon the proofs, it appear that the tenant has a freehold in any part of the premises, either exclusive, or in common and undivided, the recovery by the demandant must be limited accordingly. If the tenant seek to defeat the suit, by justifying his acts of possession under some right less than the entire freehold, he must specify the right or title upon which he relies, and disclaim as to the residue. Dunbar v. Mitchell, 12 Mass. 373. Russell v. Lewis, 2 Pick. 508. Wheelwright v. Freeman, 12 Met. 154. Johnson v. Rayner, 6 Gray, 107. A homestead right is such a freehold estate as will avail the tenant in defence to a writ of entry. Silloway v. Brown, 12 Allen, 30. If it extend over the entire premises sued for, and require the whole value of the estate to satisfy it, then the action will be defeated. Parks v. Reilly, 5 Allen, 77. But if it fall short of this, either in value or extent, and there is no disclaimer as to the residue, the demandant is entitled to recover; but his judgment must necessarily be a limited one, in accordance with [11] the statute above quoted. We are of opinion that no specification, in addition to the general issue, is necessary, to entitle the tenant to set up his homestead right in defence, or to enable the court to enter the proper judgment. Judgment for the demandant, subject to the homestead right of the tenant in the dwelling-house and the parcel of land pur* chased in 1854.