88 Mass. 510 | Mass. | 1863
The right of the demandant to a homestead in the demanded premises was acquired under St. 1855, c. 238, § 1. When that statute went into operation the estate was owned by him, he was then a householder, and occupied the estate in controversy, which was of less value than eight hundred dollars, as a residence for himself and his family. All the elements, therefore, which were necessary to create a homestead right and to exempt the premises from attachment and levy were combined, so as to vest in the demandant and his family an absolute title to the estate, indefeasible and beyond the reach of legal process after that statute went into operation.
The right thus acquired was not taken away or lost by the repeal of St. 1855, c. 238, but was expressly saved by the proviso annexed to the repealing clause in St. 1857, c. 298, § 18. Clark v. Potter, 13 Gray, 27. Nor is it destroyed by the repeal of the last named statute, which is included among the acts which are expressly repealed by Gen. Sts. c. 182. By a previous provision in c. 104, § 3, it is enacted that “ all existing estates or rights of homestead which have been acquired under any law heretofore in force shall continue to be held and enjoyed notwithstanding the repeal of such law.” The right of the demandant in the estate in controversy was an existing estate of homestead at the time the General Statutes went into operation. It was then a legal estate, which had never been abrogated or taken away, although the statute by which it was originally created had been repealed. It was, therefore, within the letter of the provision above cited, which saves and protects all previously existing estates of homestead. Nor can there be
The homestead right which the demandant had acquired under St. 1855, c. 238, was not waived or lost by his removal therefrom with his family, under the circumstances set forth in the agreed statement of facts. In the first place, an estate of homestead when once lawfully acquired cannot be released or pst except by deed duly acknowledged and recorded, as in case of conveyances of real estate. Gen. Sts. c. 104, § 8. St. 1857, c. 298, §§ 1, 3 et seq. Connor v. McMurray, 2 Allen, 204. Castle v. Palmer, ante, 404. In the next place, his temporary absence from the estate without acquiring a domicil or homestead elsewhere, and intending to return thither as soon as a special object was accomplished, did not operate to defeat or impair his right. The demanded premises never ceased to be the residence and homestead of the demandant and his family.
Judgment for the demandant.