| Mass. | Oct 15, 1858
The plaintiff derives his title and constructive possession of the premises alleged to have been forcibly entered upon by the defendant, from a deed of Willard Twichell, who held the estate in the right of his wife for and during their coverture. This paper title would have been sufficient to maintain the present action, independently of the St. of 1855, c. 238. By this act very broad provisions were made to secure to any householder having a family a homestead exemption; and that not only as against attaching creditors, but equally against the conveyance thereof by the husband unless the wife join in the deed of conveyance. The deed of the husband alone, from which the plaintiff derives all his title, is invalid in law, if at the time of its execution the premises were a homestead exempted under the St. of 1855, c. 238. It is conceded that the premises wrere, at the time this act took effect, by force thereof an exempted homestead, occupied by Willard Twichell and his wife, and so protected by force of the statute that the same could not be taken by levy of execution, or a valid conveyance thereof be made by the husband without the wife joining in the deed. The only question is whether this character of the premises as a homestead was after that period lost, and so continued to the
That a homestead right or exemption may be lost is obvious Such would be the effect of acquiring a new homestead by a change of place of residence, or by other acts of abandonment of an unequivocal character by all parties interested in its continuance. But these parties had no other homestead than this, and the further inquiry is whether the facts stated in the present case operate to divest the premises of the character of a homestead which the wife may still occupy and enjoy as such. It appears that they did not continue constantly to occupy the same after the 29th of May 1855, they having on that day gone to separate places to work for wages, but returning to occupy the same at night, once in the month of July and twice in the month of August; that their furniture remained there long after this period; that care of the furniture and the premises was taken by both husband and wife, who often went to the dwelling-house for this purpose; that in the month of August or September 1856 the furniture was removed from the house ; and that after such removal the wife often went to the house, built fires, cleared it of snow, and did what she deemed necessary to take care of the house.
As it seems to us, upon this state of facts, the premises had not lost the character of a homestead, and the right of the wife to assert such claim, and to enter upon the premises for the purposes of using them as a homestead, was a legal right which she might exercise on her own behalf, although her husband did not participate in her acts. A leading object of the homestead exemption was to provide a home for the wife. This right by the very terms of the statute the husband could not defeat by his sole deed. Much less could he do so by removing the furniture or withdrawing himself by hiring himself to work for wages. If such were the effect, then the provision so directly stated in the statute, that “ no conveyance by the husband of any property exempted as aforesaid shall be valid in law unless the wife join in the deed of conveyance,” would be rendered entirely nugatory at the will of the husband. Upon the suppo
Exceptions sustained.