Hoitt v. Webb

EASTMAN, J. On the trial of this cause, the court found that the demandant had no title to the premises by virtue of the sale under the license from the probate court. This result, we take it, was arrived at by finding that the sale was made for the benefit of the demandant, by an arrangement between him and Kelly, the purchaser; as a sale thus made would be illegal. An administrator, who, under a license from the court of probate, advertises the real estate of his intestate for sale at public auction, and at the sale becomes himself the.highest bidder, cannot make a valid sale and conveyance of the property to a third person; and any one whose interest is affected by such sale may avoid it. Remick v. Butterfield, 7 Foster 70. And it makes no difference that the property is bid off by a third person for him, at his request. A party cannot legally purchase on his own account,' either by himself or by the aid of a friend, that which his duty or trust requires him to sell on account of another, nor purchase on account of another that which he sells as his own. He cannot unite the opposite characters of buyer and seller. Currier v. Green, 2 N. H. 225 ; Brackett v. Tillotson, 4 N. H. 208; Perkins v. Thompson, 3 N. H. 144; Litchfield v. Cudworth, 15 Pick. 23 ; Church v. Marine Ins. Co., 1 Mason 341; 2 Mason 369 ; 10 Vesey, Jr., 381. See, also, Towle v. Leavitt, 3 Foster (23 N. H.) 360. The finding, therefore, upon this point of the case was correct. The court also found that the plaintiff was entitled to recover the demanded premises, as assignee of the two mortgages. These mortgages were made for the security of debts due from the deceased, and there is no suggestion that the demands were not for good consideration. They were allowed by the commissioner, [164] whose report was accepted by the probate court without appeal, and in the hands of the mortgagees they were valid claims upon the land and against the estate. Being the property of the mortgagees, they had the right to sell and assign them to whomsoever they chose, a, bond fide purchaser and assignee would succeed to all the rights of the original mortgagees. For all the purposes of security to an assignee, and to enable him to obtain any just remedy under a mortgage, the assignment of the debt and mortgage passes the legal estate. Deming v. Comings, 11 N. H. 474, 481; Hills v. Elliott, 12 Mass. 26; Howard v. Handy & al., 35 N. H. 315. And the rights of a second or third assignee are coextensive with those of the first. The demandant, then, if there was no objection to his becoming the purchaser of the mortgages, upon the ground of being administrator on the estate of the mortgagor, would stand in the position of the mortgagees, and possess their rights, and the case would be decided as though the action was brought by the original mortgagees. The purchase of mortgages against an intestate, by an administrator on his estate, with his own means and for his own personal advantage, is not to be commended, but on the contrary is to be regarded with distrust and suspicion ; and although we are not prepared to hold such a purchase illegal — the debts secured by the mortgages being valid against the deceased — yet were there any evidence tending to show fraud upon the estate, the transfer would be treated as having been made in bad faith, and as invalid. In the purchase of these mortgages no fraud was found by the court that tried the cause, and we are not to presume that any existed. The demandant, therefore, stands in the position of the mortgagees, and the case is to be determined as upon their rights. If the action could be maintained by them, it can be by him. These mortgages were both executed after the homestead exemption act of July 4, 1851, took effect, although one of them was made to secure a note of a date anterior to the passage of [165] the act. That note, by the provisions -of the fifth section of the act, was not affected by its passage, and was good against any property left by the mortgagor at his decease. The homestead also was not exempt from any attachment that might have been made in a suit upon that note. Whether, however, a mortgage to secure such a debt, but executed, as this was, after the act took effect, would be subject to the provisions of the act, or would take precedence of it, might be a question of some doubt, were it necessary to be determined, but it is not in the present case. The case finds that from the time of the marriage of the mortgagor with the defendant, Rachel Webb, the demanded premises were leased by him to tenants, and the mortgagor and his wife occupied another house and lot as their homestead. All the rights which the defendants assume to have in the premises are founded upon the marriage of Rachel Webb with Sharkey, the mortgagor; and if she has none, either of dower or by virtue of the homestead exemption act, the defence must fail. It would seem clear that there is no right of dower that can interfere with the demandant’s claim, for dower has been set off and assigned, and does -not embrace any part of the demanded premises. • The first mortgage also was signed by Rachel Webb, when she was the wife of Sharkey, and her dower in the premises relinquished, so that, to the extent of that mortgage, dower was barred. Can the tenants hold a homestead in these premises ? We think not; and upon the ground that they were never occupied by the mortgagor or his widow as a homestead. The title of the act of July 4, 1851, to which we have referred, is “ an act to exempt the homestead of families from attachment and levy or sale on execution.” And the first section provides that from and after the first day of January, 1852, the “ family homestead ” of the head of each family shall be exempt, &c. It is the “ homestead,” the “ family homestead,” that is exempt, and not other real estate which the debtor may own. Throughout the several sections of the act, the exemption is spoken of as [166] applying to the “ homestead,” and no reference is made to any other estate as protected by the act. What, then, is the homestead ? “ Stethe, or sted,” says Lord Golee, “ betokeneth properly a bank of a river, and many times a place.” Co. Litt. 4, 6. The homestead, according to that definition, means the home place; the place where the house is; and such is its legal acceptation at the present day. It is the home, the house, and the adjoining land, where the head of the family dwells; the home farm. It does not extend to other tenements, lots and farms, that are not occupied personally by the owner and his family; houses in which they do not dwell, and farms on which they do not live. And the term does not necessarily imply all those parcels of land which may adjoin and be occupied together, for the homestead is the place of the house. Richardson, C. J., in Woodman v. Lane, 7 N. H. 245. Much less, then, can it apply to leased property occupied by tenants, where the owner does not dwell. The demanded premises having never been occupied by the defendants, or by the mortgagor, as a homestead, but, on the contrary, having been leased property, occupied by tenants, and the mortgagor and Rachel Webb having dwelt and had their home in another house, upon another lot, do not, we think, fall within the spirit or intention of the act exempting the homestead, and consequently the defendants have no right in the premises. The fact that the house and lot occupied by the mortgagor and his wife was not of the value of $500 does not change the aspect of the question. The act provides that “ such homestead shall not exceed in value $500.” This fixes the limit beyond which the amount exempted shall not extend, but it does not require that the property exempted shall reach that sum, nor that other property, not occupied as a homestead, shall be taken to make it up. We are not inclined to limit or restrict the operation of the act, but to give it as liberal a construction as the legislature intended. To say, however, that the exemption shall extend to property not falling within the proper and legal signification of [167] the term homestead, and which has never been occupied as such, appears to ns would be carrying the construction beyond what was ever designed. If a person chooses to occupy a homestead of a less value than $500, and rent his other real estate, he has a perfect right so to do, but the other property cannot be exempted ; the statute does not confer upon him, in this respect, greater privileges than those which he has conferred upon himself, and the law will not declare that a homestead which he by his acts has shown not to be. The property, then, which by the act of July 4, 1851, is exempted from attachment and levy, and which is not lost except by deed, duly executed by the grantor and his wife, is the house and land where the owners dwell and have their home, whatever may be its value, provided that it cannot exceed $500 ; and other estate not so occupied is not exempt. The decision of the court upon the trial was, therefore, correct, and there must, accordingly, be judgment for the demand-ant upon the two mortgages.