Ellingwood v. Ellingwood

91 Vt. 134 | Vt. | 1917

Watson, J.

On September 23, 1902, the plaintiff, Sumner Ellingwood, then a married man and the husband of Fanny M. Ellingwood, gave a quit claim deed of his homestead situated in Yernon, this State, to the defendant Ellen M. Reed, then a married woman and the wife of Marshall I. Reed, the said Fanny M. not joining in its execution and acknowledgment. Thereafter, on the same day, Ellen M. Reed gave her sole quit claim deed of the same premises to Fanny M. Ellingwood, the wife of Sumner. Each of these deeds was signed by two witnesses, one of whom was the husband of Ellen M. Reed, and each was acknowledged by the grantor before him as a justice of the peace. No consideration moved from either party in these conveyances, the object on the part of Sumner being to transfer the title to the homestead from himself to his wife, (believing that he would not live long and that his wife, who was considerably younger than he, would survive him,) using said Ellen M. as a mere conduit for the passing of the title. Both deeds were recorded in the town clerk’s office in Yernon, on January 5, 1903.

Fanny M. Ellingwood died testate on December 4, 1913. By her will, which was duly probated and no appeal taken therefrom, she devised as a part of “the rest and residue of” her estate, the homestead property mentioned, to her daughter-in-law, Adelaide S. Ellingwood, to her and her heirs forever, conditioned that she provide Sumner with a good home, in her own family, and furnish him all things necessary for his comfort, etc., during his natural life, pay his funeral expenses, and place a suitable headstone at his grave. Adelaide S., individually and as executrix of said will, her husband, Armón U. Ellingwood, their daughter, Edith E. Ellingwood, and Ellen M. Reed, are made parties defendants.

After the death of Fanny M., Sumner was cared for by Armón and Adelaide in their home, until sometime in April following, when he became dissatisfied with his treatment at the hands .of Adelaide and left. About two weeks later he went back and remained ten days longer, after which he returned to the homestead in question, which he never abandoned, where he has since resided, being cared for under the direction of his guardian by the tenants upon the property. He is now somewhat over eighty years old. This suit was brought to have the aforementioned deeds declared null and void, and for an accounting by Adelaide S., individually and as executrix, of all sums of money received by her as rental of the property, or any part thereof, and for general relief. ¥e pass over the questions raised respecting the consequence of the deeds being witnessed by the husband of one of the parties thereto, and of his taking the acknowledgments of the grantors; for the property described therein being the homestead of Sumner Ellingwood, a married man, his deed to Ellen M. Reed, not joined in by his wife, was, by force of the statute, inoperative and conveyed nothing. P. S. 2553; Martin v. Harrington 73 Vt. 195, 50 Atl. 1074, 87 Am. St. Rep. 704; Laird v. Perry, 74 Vt. 454, 52 Atl. 1040, 59 L. R. A. 340. And since Ellen M. took nothing by the deed to her, she conveyed nothing by her deed to Fanny M. Ellingwood.

The defendants, by cross-bill, ask to have the two deeds, by order of court, declared to be good and sufficient conveyances of the real estate in question. And it is urged that the statute making inoperative the sole deed of the husband, of the homestead, does not apply to conveyances not intended to destroy the homestead, but to protect it for the benefit of the wife by a conveyance thereof to her by her consent. The statute, however, makes no distinction in this respect. The homestead act protects the husband as well as the wife, and his sole deed being absolutely void, the title stands as though no such deed had been given. Martin v. Harrington, cited above. In the Laird case, the object of the conveyance of the homestead by the husband was the same as in the instant case, namely, to convey the property through a third person to the wife. Yet it was held that as to the homestead, the husband’s sole deed was void and conveyed nothing. And such a deed being by statute a nullity, a court of equity cannot give it force.

The cross-bill seeks affirmative relief; but no notice was taken of it in the decree below, as there should have been in order that disposition be made of the whole cause. Hyde Park Lumber Co. v. Hunt, 90 Vt. 435, 98 Atl. 907; Moore v. Huntington, 17 Wall. 417, 21 L. ed. 642; 10 R. C. L. 557; § 339. The cross-bill should be dismissed with costs, and the decree should be made to include it.

Decree affirmed and cause rema/nded with directions that the decree be so altered as to include a dismissal of the cross-bill with costs.