79 Vt. 111 | Vt. | 1906
This is a bill in chancery to remove a cloud from the alleged title of the orator to certain real estate in Charleston, Vt., which he claims to own by virtue of a series of conveyances beginning with a quitclaim deed from George C. Spaulding to E. W. Stevens, bearing date April 15, 1904.
The alleged cloud is a quitclaim deed of the same real estate from Spaulding and his wife, Ellen M. Spaulding, to the defendant, bearing date December 3, 1904.
The bill was answered, but no replication was filed or made in the case within the rule, nor before the parties met for hearing before the master. At the commencement of that hearing the orator asked leave of the master to file a replication with him; which was granted subject to defendant’s exception, and after the same was filed a full hearing was had, with evidence produced by both parties, and upon that evidence the master made his report to the court of chancery, returning therewith the replication.
To all evidence received by the master on the issue joined by filing such replication, to the master’s report and to evidence excluded by the master, the defendant seasonably objected and was allowed an exception.
The master found, among other things, that the real estate in question became the property of Spaulding- on June 4, 1900, and that he married Ellen M., June 17, 1900, from which last named date they lived on the real estate in question, upon which there was then a house and barn, until July 6, 1901, when George C. left his wife and the premises with no intention of again returning to' live thereon and never thereafter did return to' and’ live upon the same; that the wife continued to live there until June, 1903, when the dwelling house upon the premises was burned; that thereupon the
Upon the foregoing facts, the defendant claims that George C. and Ellen M. had a homestead in the premises at the time of the conveyance to D. W. Stevens and until they gave the quitclaim deed to the defendant, December 3, 1904; and that the quitclaim deed to U. W. Stevens on April 15, 1904, without the wife’s joining therein, was absolutely void and that therefore the orator, who rests his claim upon that deed, has no title tec such premises, but that the deed-to the defendant from George C. and wife invested him with the full title and that therefore it is not a cloud upon the orator’s
If the real estate in question was the homestead of George C. at the time he conveyed it by quitclaim deed to L. W. Stevens, Martin and Wife v. Harrington, 73 Vt. 193, is full authority for holding, that such deed was void and conveyed no title to G. W. Stevens, the wife then being alive and not having joined in the deed, and it is therefore unnecessary to consider the many authorities contained in the defendant’s brief upon that point, taken from other jurisdictions.
The question then is, was the real estate in issue, the homestead of George C. at the time he quitclaimed the same to Stevens, April 13, 1904? No serious question is made but that it was the homestead of George C. and wife until the house was burned in June, 1903; but the orator contends that, under the facts found by the master, that homestead was abandoned when the wife moved to Canada, taking with her all her household furniture, with no intention of returning to and again living upon the premises, never having returned to and lived upon them since that time, and George C. having left the premises long before the wife, with no intention of again making his home there and having never since changed that intention nor lived thereon nor with his wife. On the other hand, the defendant urges, that such homestead was not abandoned on account of such acts of George C. and wife, because they have acquired no other homestead since; because they could not abandon the homestead by any separate act of their
. Under the defendant’s contention that the homestead was not abandoned, because George C. and Ellen M. had acquired no other before the conveyance to' U. W. Stevens, he cites Woodbury v. Luddy, 14 Allen 1 (96 Mass.). That decision rests entirely upon a construction of the Massachusetts statute, which then provided that no release or waiver of the homestead exemption should be valid unless by deed for good consideration, acknowledged and recorded as in cases of conveyances of real estate, and that no new right of homestead ,should be acquired until a previous one had been discharged or released by deed, with the consent of the wife therein. That case we hardly think can govern in the case at bar; for it rests entirely upon the construction of a statute to which we have nothing similar. No other case is cited upon defendant’s brief supporting his contention upon this point, unless it is the case of White v. Clark, 36 Ill. 285. Upon an examination of this case, it will be observed that it is nowhere stated that the homestead cannot be abandoned until another is acquired; but, if the case did so hold, it could hardly be said to be authority in this State, as the statute is substantially the same in Illinois as in Massachusetts, and not like any statute in this State.
It is unnecessary, however, for us to resort to other jurisdictions for authorities upon this point; for we think this Court has abundantly settled all questions in this respect. Our present homestead law was passed in 1849. Sections one and five of No. .20- of the Acts of that year, are the same in legal effect as sections 2179 and 2189 Y. S., except, that
Again later, a case came up under the homestead statute respecting the husband’s sole deed of what was once his homestead, but which he had leased for a period of five years, Davis v. Andrews, 30 Vt. 678, and the Court say, Poland, Judge, delivering the opinion: “One of the requisites of a homestead by the statute is, that it shall be occupied by such person as a homestead.”
It is said in Mills v. Grant, 36 Vt. 269: “The statute definition of a homestead necessarily implies a home actually used or occupied by the housekeeper as a dwelling place or home for himself and his family.”
The foregoing decisions were made under the Act before the amendment; but this Court has held since the amendment that the homestead should be actually “used or kept” as such, as uniformly as it held that it should be actually “occupied” as a homestead, in order for it to exist as such, before the amendment. The only difference which the Court has made
Upon the point that George C. and Ellen M. could not abandon the homestead by any separate act of their own, the defendant relies upon Ott v. Sprague, 27 Kansas, 620; Dickinson v. McLane, 57 N. H. 31; Poole v. Gerrard, 6 Cal. 71 (65 Am. Dec. 481). These cases, relating to conveyances and not to the subject of abandonment, may express the law as to the effect of separate conveyances by husband and wifein the states where rendered, and probably da, but they can have little, if any, weight in this State, as we have no statute exactly corresponding to the statute under which those decisions were made. If, however, our statute did confine the conveyance of the homestead to the joint deed of the husband
As above stated, the defendant does not and could not dispute but that the right exists in this State of conveying
The defendant urges, that, if the homestead can be abandoned without another having been acquired and by separate .acts of the husband and wife, yet in this case it was not abandoned by the wife, as she left the place because forced to do :so by circumstances over which she had no control, and because she claimed an interest in the premises at the time she joined in the deed with her husband;
An answer to the defendant’s contention upon this point is, that the master has found that the husband and wife left the premises with no intention of again returning to live upon them, and it malees ím difference that they left at different times. .Whether this be called an abandonment or otherwise, it was an act coupled with an intention, which, under the statute, prevented the husband and wife, or either of them, from saying that the real estate in question was "used or kept” as a homestead, and though the husband still continued to ■own the land, its character as a homestead ceased to exist, .and could not be revived by an unexplained claim of interest asserted by the wife a long time after the abandonment of the possession of the premises. The removal from the possession of the premises in question by both husband and wife, as in this case, with no intention of again returning to or living upon them, was sufficient, under the statute, to terminate the existence of the homestead interest; for it could not
The result of the foregoing discussion is that on the 15th day of April, 1904, the real estate in question was not the homestead of George C. and Ellen M., and that the sole deed of the said George C. conveyed the premises to R. W. Stevens, and that through the subsequent conveyances from Stevens and his grantees that title came to and is now in the orator, and that the deed from George C. and Ellen M. to defendant, conveyed no title to the defendant, and that therefore said last named deed is a cloud upon the orator’s, title.
As to the defendant’s contention that it was error for the chancellor to allow the replication to be filed nunc pro tunc, we take occasion to say, that the filing of the replication with the master to whom the case wes referred, was of no avail, and left the case standing on bill and answer. The cáse standing thus, the master should have refused to go to trial; but a hearing was had and leave subsequently obtained from the chancellor to file a replication nunc pro tunc. This was within the discretion of the Chancellor. Chancery Rule 45. When such leave was granted and a replication filed in accordance therewith, the previous defect was thereby cured.
The defendant contends that the chancellor erred in overruling defendant’s exception to' the master’s ruling admitting evidence tending to show the acts, conduct or declarations of George C., Ellen M., the orator or the defendant, had or
It nowhere appears in the record before us nor is it pointed out in the defendant’s brief wherein the error complained of lies; nor wherein the defendant is harmed by the admission of such evidence. This Court, therefore, cannot assume that it was of a character to produce error; for error is to be shown by the party claiming it, and is never to be presumed. McNeish v. Hulless Oats Co., 57 Vt. 316; Brooks v. Guyer, 67 Vt. 669.
Decree affirmed and remanded.