Adams v. Jenkins

82 Mass. 146 | Mass. | 1860

Bigelow, C. J.

There are no facts in the case, from which it can be fairly inferred that the plaintiff’s debt secured by the mortgage under which he claims to recover the premises was a debt contracted prior to the passage of the homestead act of 1855. On the contrary, by taking a new note in lieu of the former one, with a mortgage to secure its payment, it is clear that the parties intended it as a new debt, and that the old debt was intended to be extinguished and paid. It is not a case where a party having a note secured by a mortgage surrenders it and takes a new note in its place, still retaining the mortgage as security. ' There the inference is that the party did not intend to take the new note in payment, because by so doing he would give up his security and receive nothing to take its place; the inference of payment is' rebutted by the circumstances; a party cannot be presumed to intend to abandon his security; the more reasonable inference therefore is that renewal of the debt, and not its payment, was the purpose which the creditor had in view. But a different presumption arises when an old debt not secured is given up, and a new note taken with a mortgage as security. In such case, the creditor may be presumed to receive the new note in payment of the old one.

The conveyance in mortgage to the plaintiff was therefore made to secure a debt contracted subsequently to the enactment of the homestead act of 1855. The wife did not join in the conveyance, except for the purpose of releasing her dower. The conveyance was therefore invalid, and conveyed no title to the plaintiff as against the defendant, to whom the estate was subsequently, and before this conveyance was confirmed by St. 1857, c. 298, § 13, conveyed by a deed in which she joined and conveyed her homestead right. This last statute expressly excepts from its operation all rights in real estate acquired by purchase or otherwise prior to its enactment. Johnson v. Fay, ante, 144. The provisions of St. 1855, c. 238, are substantially the same with those of St. 1851, c. 340. The only difference is that the former extends the homestead exemption from five hundred to eight hundred dollars. The decision of the court in Richards v. Chace, 2 Gray, 383, is therefore applicable, and the demandant is not entitled to recover the lot of land first described in the mortgage to him.

Sufficient facts are not stated to show that the second described parcel of land was used and occupied as part of the homestead of the mortgagor. The demandant is therefore entitled to recover possession thereof. Judgment accordingly.