Tilden v. Crimmins

The opinion of the court was delivered by . Ross, J. The only question is whether the defendants, or either of them, have a homestead right or interest in the premises. The Rich mortgage was given for the purchase money, and bound the entire premises for its payment. No homestead right or interest in the premises existed against this mortgage. [550] It was foreclosed at the March Term, 1880, and the decree became absolute April 1, 1881. There is no fact found by the .masters which modifies or varies the effect of that decree as having become absolute, in accordance with its terms, April 1, 1881. The defendants thereby lost all homestead rights in the premises .which antedated the decree. Crimmins, by taking the contract, called a bond for a deed, in December, 1888, yielded to the force of the decree as absolute. All the defendants’ right to a'homestead in the premises must date and be derived subsequently to that contract. The debt due the orator all accrued before the date of the contract. The homestead interest of the defendants in the premises was subject to be taken for its payment. E. L. s. 1901. By the order of assignment of the court of insolvency the assignee of John Crimmins took title to all his property ‘ ‘ which might have been taken on execution upon a judgment against him at the time of the filing of the petition.” E. L. s. 1820 ; Collender Co. v. Marshall, 57 Vt. 282. Therefore, for the payment of the orator’s judgment debt, the assignee by the order of assignment took the entire premises, including the defendants’ homestead interest. Their homestead interest above the payment of the Eich and Marr mortgages — owned by the orator, and which covered the entire premises, including the homestead interest — was much less than the orator’s judgment debt. The orator acquired all the rights of the assignee in the premises by his purchase and deed from him. By the clause, “ subject to the mortgagor’s homestead right,” inserted in the deed from the assignee, must be meant such homestead right as the mortgagor had' against the order of assignment of the court of insolvency. But if by this clause the mortgagor’s homestead right did not pass to the orator by the assignee’s deed, that right passed to the assignee by the order of assignment, and still remains vested in the assignee for the payment of the orator’s judgment debt, or some portion thereof. It is not in the defendants, and they cannot set it up against the orator in this proceeding. If the orator has not obtained that interest [551] by bis deed from tbe assignee, be is entitled to have tbe assignee now sell it and turn tbe avails towards tbe payment of bis judgment debt. On these views — without considering tbe other questions discussed in the brief of tbe defendants’ solicitor — it follows that tbe defendants have no homestead right in tbe premises against tbe mortgages, judgment debt, and deed from tbe assignee, now owned by tbe orator. Mrs. Crimmins has no homestead interest therein greater or other than has her husband. Tbe decree of the Court of Chancery is affirmed, and cause remanded.