Chittenden County Trust Co. v. Hurd

Watson, O. J. As this case stands on an agreed statement of facts, its determination must-be based on the facts thus appearing; for no inference could be drawn by the chancellor therefrom. Mathie v. Hancock, 78 Vt. 414, 63 Atl. 143. The real question in the case is, Did Lyman C. Hurd, Jr., have a homestead right in the premises as against the plaintiff’s mortgage to the extent that it secures the payment of his indebtedness which is not a part of the purchase money, his wife not joining in the mortgage? Lyman C. Hurd, Sr., asserts such [75] a paramount homestead right which is covered by the subsequent mortgage to him, in the execution and acknowledgment of which the husband and wife joined. The burden is on him to maintain this assertion. Whiteman v. Field, 53 Vt. 554; Thorp v. Wilbur, 71 Vt. 266, 44 Atl. 339. The delivery of the deed of the property to Lyman C. Hurd, Jr., and the execution and delivery by him of the mortgage to the plaintiff, were concurrent acts. The agreed facts contain no statement to the effect that the premises were purchased by Hurd, Jr., with the intention of making any part of them a homestead, nor that he used or kept them or any part of them for such purpose before he moved his family therein and occupied the same as such, “shortly after” the delivery of the deed and mortgage. “Shortly,” in point of time, is a relative term. It means, says Webster’s International Dictionary, “In a short or brief time or manner; soon; presently; quickly.” The facts of record, therefore, fall short of establishing that at the time Hurd, Jr., executed and delivered the mortgage to the plaintiff, he was using or keeping the premises or any part of them as a homestead. It follows that the plaintiff’s mortgage is a valid security on the entire premises, for the payment of both its notes, and the taxes specified. The foregoing, in effect, disposes of all the questions presented in argument. One mistake appears in the decree, however, which should be rectified. Thereby the cross-bill of Hurd, Sr., which relates to the homestead, is dismissed in toto, whereas (under the agreement as to pleadings) it should be treated as broad enough to afford a basis for the affirmative relief granted him by way of a decree of foreclosure against all the parties except the plaintiff, subject to the rights there mentioned. For this purpose the cross-bill should be retained in the ease, dismissing it as to the plaintiff only, and the decree is altered accordingly. Decree, as altered, is affirmed, and cause remanded. Let neio times of redemption be fixed.