Boyle v. Shulman

BBICKELL, C. J.— These causes dependent on the same facts, involving the same legal questions, were submitted together. In numerous cases, this court has declared, that it is not land merely, a debtor may select and retain as exempt from liability to the payment of his debts. On the land at the time of the selection or claim there must be impressed the character and quality of a homestead. It is the homestead only, Avhich is AvithdraAvn by the constitution and laws from the just claims of creditors. Actual occupation as a dwelling place, as a home, is the characteristic which distinguishes it from other real estate. A temporary absence from it, the character of a homestead having been impressed by a prior occupation, with the intention to return and occupy it as a homestead, would not operate an abandonment or forfeiture of the right to claim and retain it as exempt from the payment of debts. A man can no more have tAvo homes, than he can have tAvo domicils, at the same time. During his absence temporarily, occupation may remain with his servants or agents. But if he transfers his occupation and right of possession to a tenant, disabling himself for a term, from returning and resuming posssession at pleasure, and acquires a home elseAvhere, the right of homestead, and of exemption ceases.—Austin v. Stanley, 46 N. H. 51; Horn v. Tafts, 39 N. H. 478. [570] The present statute qualifies the principle. If there has been a declaration and claim of the premises recorded in the office of the judge of probate, a temporary leasing or quitting for a term of not more than twelve months, at any one time, is not an abandonment of the homestead right.—Code of 1876, § 2843. It was an undisputed fact that at the time of the levy on the premises now claimed, they were in possession of a tenant of the appellant under a lease for a term of more than one year. The lease was made for the purpose of deriving profits from the premises, to extinguish an incumbrance on them. The appellant had acquired a homestead elsewhere, which was in her actual occupancy; and until after the levy, there was no selection or claim of these premises, and the claim when made was unattended with occupation. ■ The leasing of the premises for a longer term than twelve months, and the acquisition of a homestead elsewhere,, was an abandonment of the right of exemption. That right is conferred to protect the roof that shelters, and can not be converted into a shield of investments in lands, from which rents and profits are to be derived, whatever are the purposes to which these may be applied. Nor is the intention of the appellant to return and resume possession on the expiration of the lease material. The fact remains that she had acquired a homestead elsewhere, and it is legally impossible-for her to have two homes at the same time. The homestead right must exist at the time it is claimed.. The subsequent entry and occupation of the premises by the appellantcould not retroaet so as to give her claim a validity, it did not have when interposed. Shifting the dwelling from one place to another, under the pressure of, and to avoid legal process to compel the payment of debts, is not sanction by the letter or spirit of the constitution, or the statutes,. The judgments are affirmed.