Symonds v. Lappin

Mr. Justice Scholfield delivered the opinion of the Court: Appellants bring this record here, and ask a reversal of the decree, upon the ground that the court erred in decreeing the foreclosure of a mortgage on property wherein they had a right of homestead, which they had not relinquished pursuant to the requirements of the statute in that regard. Unless the right of homestead existed when the mortgage was executed, there was, obviously, no necessity for its relinqnish.ment; and it does not follow, either as a logical or legal conclusion, that because the property was occupied by appellants as a homestead, when they answered appellee’s bill to foreclose, it must have been so occupied when the mortgage was executed. To avail of the benefits of the Homestead law, it was incumbent on them to allege, in their answer, such facts as certainly brought them within the protection of the' law. We can not indulge in presumptions, not necessarily arising from the facts alleged, to aid them in this regard. In the only answer filed,-which was by the appellant Marennus, he admits the execution of the mortgage to secure the indebtedness charged in the bill, but alleges as follows: “That the said real estate, in said bill described, is the homestead upon which defendant and his family reside; that in and by said mortgage, defendant does not waive his right under the homestead laws, and that said mortgage debt is not for purchase money of said real estate.” And this is all. When it became the homestead does not appear, and there is nothing but this answer in the record that relates to the question. The question of the homestead right of appellants, therefore, was not properly before the court, and we perceive no cause to disturb the decree, and it will be affirmed. Decree affirmed.