Goodall v. Boardman

The opinion of the court was delivered by Powers, J. This is an ordinary petition to foreclose a mortgage. The defendant Ruby Boardman claims a homestead in the mortgaged premises. 1 The master’s report shows that on the 17th day of May, 1871, Moses Boardman, then the husband of the defendant Ruby, by his sole deed executed the mortgage in question, upon a certain farm in Wolcott; that at that date, Boardman and family were living on a farm in Greensboro, where he had lived for many years, and in which he had a homestead estate ; that on March 22, 1869, when he purchased the Wolcott farm, he expected to sell his Greensboro farm, and supposed he had a customer for it, and he bought the Wolcott farm intending to make his future home thereon ; that his expected sale of the Greensboro farm failed, [101] and thereafterwards until after the execution of the mortgage in question, he continued to own both farms ; all the while anxious to sell the Greensboro farm, and all the while intending as soon as that was sold, to permanently remove to the Wolcott farm ; — that during all this time he kept up his household in Greensboro, but carried on the Wolcott farm, going there from Greensboro with his wife, or daughter, and occupying the house there, while doing the work on the farm ; that these trips to Wolcott were for the temporary purpose of doing the work on that farm, occupying a few weeks in the spring, again in the summer, and again in harvesting. Our statute, sec. 1, chap. 68, Gen. Sts. provides that the homestead “ consisting of ... . not exceeding five hundred dollars in value, and used or kept ... as such homestead shall be exempt,” Ac. A later section forbids its alienation except by the joint deed of the husband and wife. The most that can be claimed from the facts reported, is, that at the date of the mortgage in question, Boardman had a homestead in Greensboro, then actually “ used ” as such by him, and another in Wolcott, then actually “ kept ” by him for future use. Boardman could have but one homestead. The homestead exemption in the Greensboro farm was earliest in time, and continues until it is abandoned for the new one. It was not abandoned, and the continued user of it, as the family home, determines its character as his homestead. The defepdant also claims that the agreement of May 22,1878, between the petitioner and Mr. Tolman, executor of Boardman, estops the petitioner from now denying the defendant’s claim to a homestead. This agreement was made after Boardman’s death. If a homestead existed in the Wolcott estate, paramount to the petitioner’s, mortgage, it passed by the death of Boardman at once to his widow and minor children. Sec. 5, c. 68, Gen. Sts. The executor has no interest in, or control over the homestead, unless debts chargeable upon it exist. He has no power to convey it, and excepting it from his deeds, withdraws nothing from his grant. All that Mr. Tolman undertook by this agreement to do, was not to prejudice the widow’s claim to a homestead, by the settle [102] ment of the matters in dispute between him and the petitioner. The agreement left the claim to a homestead to be determined between the defendant Ruby and the petitioner. This agreement was extended by parol; and this petition was brought before the expiration of the extended time. As to Tolman, therefore, the suit is premature ; but this does not affect the right to maintain it against the other defendants. The decree of the Court of Chancery denying the claim for homestead, and for a foreclosure against all the defendants except Tolman, is affirmed. As to defendant Tolman the petition should be dismissed with costs. The cause is remanded.