West River Bank v. Gale

The opinion of the court was delivered by Pierpoint, C. J. This is an action of ejectment. The plaintiff claims title to the premises in question, under a set off of the same upon executions against the defendant. The defendant insists that the plaintiff acquirad no title to the premises by virtue of such proceedings, for the reason that at the time of the attachment and ■set off, the premises constituted the defendant’s homestead, and as such were exempt by statute. It appears from the bill of exceptions, that the defendant purchased the premises, and took a deed thereof on the 20th day of June, 1855. He put his deed upon record the 3d day of March, 1857. On the 25th day of November, 1859, the defendant signed ¡a note as surety to. the plaintiff. In April, 1860, the defendant moved with his family on to the premises in question, and continued to reside there, making it his home. In December, 1861, the plaintiff commenced a suit upon said note and 'attached said premises, and in 1863 obtained a judgment thereon ; and the premises were set off in separate parcels at different times, and upon differ■ent executions issued at different times upon said judgment. It is ■conceded that the whole premises did not exceed in value the ■sum of $500. It is claimed by the plaintiff that the premises were not exempt [31] from attachment upon this debt, by the statute, as the debt existed at the time the defendant moved on to the premises, and first commenced to occupy it as a homestead. The statute in force at that time is as follows: “ Such homestead shall be subject to attachment and execution, upon any contract that may be made, and for all matters and causes of action which may accrue, previous to, or at the time of the purchase of such homestead, etc., and the time when the deed to the owner of such homestead shall bo left in the town clerk’s office for record, shall be deemed the time of the purchase thereof for the purpose mentioned in this act.” Comp. Stat., chapter 65, § 6. In this case the defendant purchased the premises and recorded his deed before this debt to the plaintiff was contracted. He took possession of it, and occupied it as a homestead after the debt was contracted, and before it was attached by the plaintiff. What the effect would have been if the plaintiff had attached the premises before the defendant had commenced its occupation as a homestead, it is not necessary to inquire; the only question now is whether the premises were subject to the attachment while occupied as a homestead, in consequence of the existence of the debt prior to the commencement of such occupation. This must depend upon the construction of the statute. The statute, by its terms, clearly exempts the homestead from attachment on all debts except such as have an existence at the time the deed thereof is left for record. The word homestead is evidently used in the statute with reference to the condition of the premises in that respect, at the time the attempt is made to attach or levy upon it, and not to its condition at the time the deed is left for record. Ordinarily the homestead is purchased and the deed recorded before the occupation commences, often a long time before. Men often own more than one place suitable for a homestead, and are at perfect liberty to change their homestead at pleasure. The statute was not intended to impose any restraint upon their doing so. The object of the legislature in this provision evidently was to prevent men, after they had obtained a credit, from putting their property into a homestead, and thus preventing their creditors from reaching it by attachment, and [32] this object is fully accomplished by making it subject to all debts that existed prior to the purchase ; and to make the period definite and always susceptible of proof, they fixed upon the period of the leaving of the deed for record, the town clerk being required by law, in all cases, to write upon all deeds, left for record, the time, day and hour, when they are so left. If the legislature had intended to leave the homestead subject to attachment, on all debts existing at the time it was first occupied as such, language would have been used indicating such an intent; certainly different language would have been used from that above recited. In this case we think the defendant’s homestead in the premises was not subject to attachment when the attempt was made, by reason of the time when the plaintiff’s debt was contracted. The plaintiff further claims that he acquired, by his levy, a good title to that part of the premises which he set off, on the 3d of April, 1863, on the ground that it did not constitute a part of the homestead. The case shows that the whole premises “ consisted of a small parcel of land with a house and barn upon it, upon one side of a highway, and a blacksmith’s shop and water privilege on the opposite side of the highway; the whole worth less than five hundred dollars.” It is not claimed that the part set off at that time was subject to attachment in consequence of its being separated by a highway from the part on which the dwelling-house stood, but by reason of its having a blacksmith’s shop and water privilege upon it. The defendant was in the possession and occupation of this part, in connection with the whole premises. Neither the defendant nor any one else was using the shop for the purpose for which it was built; and the water privilege does not appear to have ever been used for any purpose; and there is nothing to show that the defendant was using this part except in .connection with the other, and in the way in which the homestead premises are ordinarily used. If the defendant had been a blacksmith by trade and had used this shop in his business, we are not prepared to say that it would have made any difference in respect to his right of homestead therein. The legislature probably did not intend to restrict. [33] the use of the homestead to the ordinary domestic purposes of housekeeping, but to give a man a place exempt from attachment, not exceeding $500 in value, with the privilege of occupying and using it as a homestead in such manner as he shall think best calculated to enable him to support his family. At all events we see nothing in this case to warrant us in saying that the part set off as aforesaid did not constitute a part of the homestead. But the plaintiff insists that he obtained a title to the part of the premises on which the dwelling-house stood, by the levy of the 27th of February, 1867, the defendant at that time not being in the occupation of the premises as a homestead. In section 1 of chapter 65 of the Compiled Statutes it is provided that “ the homestead of every housekeeper, or head of a family, residing in this State to the value of $500, such homestead consisting of a dwelling-house, outbuildings and lands appurtenant, occupied by such person as a homestead, etc.” Under this section it was held in True et al. v. Estate of Morrill, 28 Vt., 672, that to constitute a place a homestead within the meaning of the statute, there must be a personal occupation thereof, by the housekeeper, or head of a family. In Davis and Wife v. Andrus, while recognizing the same doctrine, Judge Poland says: “It is not true that every temporary absence from home would authorize creditors to take a man’s homestead, or authorize him to convey it, to bar the right of his wife, but an abandonment of it, as a home and setting up another, we think would have that effect. It may frequently become a nice question whether the absence is of such a temporary character and purpose, that the home or domicil still continues, or whether it is changed to another place, and so lost to the first, or not, but when it is made clear that the residence and home of the family has been changed, the right of homestead in the old residence is changed.” It might be claimed with considerable force that, under the findings of the court below, this case comes fairly within the principles above enunciated by Judge Poland, but it will be observed that since those decisions were made, the statute has been materially altered in its phraseology, evidently with the intention of giving it a more extended opera [34] tion than it originally had, under the above decisions. In section 1 of chapter 68 of the General Statutes, which was in force at the titfte the levy aforesaid was made, the language is substantially the same as in the Compiled Statutes, section 1, before recited, except that in place of the words “ occupied by such persons as a homestead,” in the Compiled Statutes, the words “ used or hept by such housekeeper or head of a family,” etc., are used in the General Statutes. The alteration is quite significant' and bears directly upon the question now under consideration. In this case the defendant was not in the actual occupation of the premises as a homestead at the time it was levied upon, nor was it being used as such, but we think, under the findings of the county court, it cannot be said that the premises were not at the time being kept as a homestead. When the defendant left, he did not intend to abandon the place as his homestead, but to retain it, leaving a part of his furniture, with the intent to return to it after a temporary sojourn elsewhere for a specific purpose. His absence was protracted by accidents beyond what he originally contemplated, but he did not change his purpose to return, but carried it into effect as soon as he recovered from his injuries sufficiently to be removed to his home. The findings of the county court were upon evidence tending to establish the facts found, and are conclusive upon this court. We find no error in judgment of" the court below. Judgment affirmed.