47 Vt. 375 | Vt. | 1875
The opinion of the court was delivered by
This is an appeal from the decree of the court of chancery dismissing the orators’ bill. The material facts set forth in the bill, may be summarized as follows: Robert Maranville, on the 27th day of October, 1868, was the owner, and, with his wife and minor children, was in the occupancy of certain premises in Pittsford, in which they had a homestead, and on that day Robert, by his sole deed, mortgaged said premises to one Curtis
The defendant insists that Robert is estopped by his deed from questioning the title of the defendant under the mortgage, and that his deed had the effect to pass the title to the homestead during his lifetime, and that the rights of the wife and minor children to the homestead could only attach at his decease. In support of the latter proposition, the defendant relies upon the cases of Howe v. Adams, 28 Vt. 541; Davis & wife v. Andrews, 30 Vt. 678; and Jewett et al. v. Brook et al. 32 Vt. 65. Howe v. Adams is the earlier case, and upon it the others in some measure hinge. In that case, the husband, by his sole deed, conveyed the homestead. After such conveyance, a creditor of the husband whose debt accrued before the homestead law took effect, attached the homestead premises, and having obtained judgment upon his debt, levied his execution thereon, and the question in the case arose upon an ejectment brought by the creditor against the husband’s grantee. Now, it is obvious that the rights of such a creditor stand in an entirely different relation to the homestead estate, from the rights of the wife and children of the owner of the homestead, or the rights of creditors whose debts accrue after the homestead is acquired. By the express language of the homestead act, the homestead was liable to attachment upon debts existing before the law took effect, or before the homestead was acquired. As against such debts, there was no homestead, — the property remained as it was before the law was passed, and as the husband plight by his sole deed convey the property before the passage of the act, so after its passage he might do the same as against those creditors whose debts were superior to the home
But whatever may be said of these cases, decided under the statute then in force, we are all agreed that the statutes now in force relating to the homestead, are sufficient authority for sustaining the bill in this case. The act now in force, and which governs this case, was passed since the above cases were decided, and pro
We think that the interest of the wife and children of Maranville in his homestead, was not affected by his deed to Curtis, and that they have a right of occupancy in the homstead, and are properly joined with the husband in a bill brought to arrest proceedings which threaten such occupancy.
It is urged that Maranville himself is estopped from setting up a homestead interest in the mortgaged premises. It is an essential element in the doctrine of estoppel by deed, that the deed itself which it is claimed works the estoppel, should be a valid instrument ; and as we hold his deed invalid as to his homestead, we do not think Maranville can be barred from claiming what he has never parted with. Doe d. Chandler et al. v. Ford, 3 Ad. & Ellis, 649; Housatonic Bank v. Martin, 1 Met. 294; Bigelow Estop. 283, 598.
The result is, the decree of the court of chancery sustaining the demurrer and dimissing .the bill, is reversed, and cause remanded to that court, with leave to the defendant to make further answer if he desires.