90 Vt. 269 | Vt. | 1916
The defendants were occupying the premises in contention as a homestead in January, 1912, when the dwelling house thereon was destroyed by fire and they were compelled to go elsewhere to live. Were the premises being kept as their homestead in June, 1912, when the defendant, Victor, delivered to the petitioner a quitclaim deed of the premises in which the wife did not join? If they were, the deed is void as to the homestead. Martin v. Harrington, 73 Vt. 193, 53 Atl. 1074, 87 Am. St. Rep. 704. So the question is not whether the defendants acquired a homestead, but whether they abandoned
After the fire they moved from the premises and in May after the making of the lease they went to Rutland to live.
In April the defendant Victor, with the consent and approval of his wife, executed a lease, in which his wife did not join, by its terms leasing the premises for the term of two years. Whether the premises were kept or abandoned as a homestead is largely determined by the intention of the housekeeper or head of the family. Cushman v. Davis, 79 Vt. 111, 64 Atl. 456; Thorp v. Thorp, 70 Vt. 46-50, 39 Atl. 245; Whiteman v. Field, 53 Vt. 554. Without deciding whether the lease was valid, the fact of its execution is pertinent and material upon the question of the intention of the defendant, Victor V., and that, it was done with the consent and approval of the defendant, Victoria, is also pertinent if the intention of the wife is material. Whiteman v. Field, supra. It is unnecessary to decide whether the lease conclusively shows an abandonment, for its execution taken in connection with other facts reported is evidence of abandonment. See Bemis v. Bugbee, 50 Vt. 216. When the deed was made in June, the lease had been executed, the lessee had given notes for rent, which had been turned over to the petitioner to apply on the old mortgage indebtedness when paid, the lessee was, and for some weeks had been, in possession of the premises, the defendant, Victor V.,'had attempted at least to part with the present right to occupy the property, to postpone his right of occupancy for two years, and both defendants and their children had moved to Rutland to live. By the deed and the instrument accompanying it the defendant attempted at least to part with the legal title and with the equitable right to redeem for the period of two years. All of these facts tend to show that Victor had abandoned the homestead and was not keeping the property as a homestead when he made the deed. Whether he was then keeping the premises as a homestead is a question of fact not reviewable in this Court if supported by evidence. Russ v. Henry’s Estate, 58 Vt. 388, 3 Atl. 491. Every reasonable intendment is to be made in support of the decree. Kelly v. Seward, 51 Vt. 436. By reasonable intendment the Chancellor by the statement in his decree, “it is further adjudged and decreed that no homestead right or interest is outstanding in either of the defendants against the right of orator,” found as a fact
This part of the decree being fairly subject to such construction, it will be so construed, notwithstanding it might also be construed as being but a legal conclusion from the facts specifically found; for the rule is, that when the record is fairly subject to two constructions, one of which supports the judgment or decree, and the other of which necessitates a reversal, the former construction shall be given. Cram v. Cram, 33 Vt. 15.
This disposition of the case makes it unnecessary to decide the legal effect of the destruction of the dwelling by fire.
The findings recite that the defendants intended, “as soon as they were financially able to do so, to return and rebuild the dwelling house and occupy the premises as their homestead.” It does not appear when this intention began. If the effect of this finding were to negative an abandonment, provided the intention antedated the deed, we could not infer for the purpose of reversing the decree that the intention antedated the deed, but in support of the decree we may. and do infer that the intention was subsequent to the deed.
Decree affirmed mid cause remanded. Let a new time for redemption he fixed.
