Jewett, Tibbett & Co. v. Brock

Bennett J. This is an action of ejectment, and several questions have 1 een raised upon the argument; but in the view we have taken, it becomes necessary to consider only a single one. This suit is brought to recover the premises designated in the levy of the plaintiffs’ execution, as the homestead of Samuel Eastman, the judgment debtor, and both parties claim under Eastman ; and the question which lies at the threshold of this controversy is, what is the effect of the mortgage deed from Eastman to the Tuckers? It conveys by a general description of boundaries, the premises where the grantor then lived, “ saving always the homestead exemption in the same.” In Howe v. Adams, 28 Vt. 541, it was held that the o/wner of a homestead having a wife might convey it by his own deed without joining his wife in it, so as to vest in the grantee a superior title to that of a subsequent attaching and levying creditor upon a demand, which accrued before the 1st of December, 1850, and as to whose claim the homestead-was for that reason not exempt from attachment and execution. This homestead exemption does not de facto vest any title in the wife, but is nothing more than an inchoate lien upon the estate of the husband in her favor, and is subject to contingencies, and is to be asserted only for the benefit of the wife and family; and we apprehend that nothing is reserved to Eastman under his mortgage deed to the Tuckers, but an equity of redemption in the whole premises. The expression “ saying always the homestead exemption in the [67] same,” we think refers to the contingent rights which the wife might set up to a homestead on the premises as conveyed, and that it was not designed to reserve any portion of the premises to the husband. As to the husband the operation of the deed is the same as if it contained no such saving. With this construction the case is like Howe v. Adams, and should be governed by that case. Under this view the plaintiffs cannot succeed with their action, and there is no occasion to consider any other point. Judgment affirmed.