38 N.H. 62 | N.H. | 1859
No question was made in the argument, and there can be none, that this court sitting as a court of equity has ample jurisdiction of all the matters of relief sought in the complainant’s bill. It has jurisdiction in cases respecting the redemption and foreclosure of mortgages of real estate, in suits for discovery, where a discovery may lawfully be required, and in cases for the partition of real estate. Hev. Stat., ch. 171, see. 6; Comp. Laws 434; 1 Story’s Equity Jurisprudence, secs. 646, 658; Whitten v. Whitten, 36 N. H. 326.
The whole matter of controversy between the parties under the demurrer relates to the complainant’s title.
These conflicting positions necessarily involve a consideration of the nature and characteristics of the homestead contemplated and provided for in the act of July 4, 1851, generally known as the Homestead Act, and distinctly raise the question whether that act, by its own operation, carves out of the real property occupied as the family homestead by each head of a family, and vests in the husband and wife, where those relations exist, an estate of the value of $500 distinct from the residue of the property, possessing, from its inception, the quality of assignability, either separately or in connection with the entire property occupied as a family homestead, by the joint deed of the husband and wife, duly executed; or only creates a right to an estate of that value therefrom, contingent and initiate, existing in the husband and wife during the life time of the husband, and in the wife and minor children after his decease, leaving a widow, or children under age, personal
The decision of these questions depends on the interpretation to be given and the construction to be put upon the phraseology of the homestead act, and although its language is by no means perspicuous, and its terms and details are far from clear, full or explicit, we think a careful examination of its provisions cannot fail to satisfy every one, that the legislature must have intended by its enactment to create, in every family homestead of sufficient value, only an inchoate right of homestead exemption to the value of $500, unassignable until perfected by the setting apart thereof in some way from the rest of the property occupied as a family homestead, and not an absolute, independent estate of that value, transferable at the will of the person or persons in whom it vests, before its separation from the general estate out of which it issues. The terms employed in the first section of the act, in relation to the “release” and “waiver” of the homestead right, are entirely inconsistent with the idea that the legislature could have intended by the operation of the act itself to create an estate transferable and assignable like any other interest in lands; and it seems to us quite clear that the obvious purpose and necessary effect of the whole enactment is to create, for the mutual benefit of the husband, wife and minor children, where those relations exist, an inchoate right of homestead exemption to the value of $500, in every piece of real property in this State of that or greater value,
"We have already stated that in our judgment this right of homestead exemption, contingent and inchoate, as it exists in the husband and wife where that relation subsists, is incapable of being extinguished, destroyed, waived or released by the sole act of the husband, and should not have deemed it necessary to remark further upon that point, but that it has been with some plausibility contended, that from the language of -the first clause of the sixth section of the act there arises a clear and necessary implication that the husband alone, before the statute homestead is set out, may convey or release it, together with the property in which it exists, inasmuch as he is expressly prohibited by that clause from alienating it after it has been set apart from the rest of the estate. Such a construction of that clause would conflict directly with the proviso of the same section, violate the letter as well as the spirit of the preceding sections, and effectually nullify
But a construction of the clause under consideration which would lead to such results, opposed as it would be to the whole tenor of the rest of the act, may readily be avoided without doing violence to its language; and such interpretation be given to it as shall be entirely consistent with the proviso which follows, as well as with the preceding sections of the statute.
The words of the clause are: “ No conveyance or alienation by the husband, of any property exempt and set off as aforesaid, shall be valid unless the wife join in the deed
If the clause under consideration be regarded as eliptical, and the omitted words be supplied, any seeming repugnancy is avoided, and the clause harmonizes entirely with the proviso attached to it, as well as with all other portions of the act. It may properly, and without any violation of the recognized rules of grammatical construction, be paraphrased as follows: “ No conveyance or alienation by the husband of any property exempt as aforesaid,” [that is, of any property in which the right of homestead exemption exists, as provided by the first section of the act, so far as that right is concerned,] “ and no conveyance or alienation by the husband of any property, set off as aforesaid,” [that is, of any homestead set apart as provided or contemplated in the preceding sections,] “ shall be valid, unless the wife join in the deed of conveyance.” Then the proviso which follows, that the husband may, without the wife’s consent, mortgage the property in which the right of homestead exemption may afterwards exist in
We are, therefore, of opinion that the sixth section of the homestead act expressly prohibits the husband from alienating or in any way conveying, without the concurrence of the wife, not only the homestead after it has been set out, as provided or contemplated in the act, but also the property occupied as the family homestead, and to which the right of homestead exemption attaches, so far as that right is involved, except by mortgage made to secure the purchase money at the time of the purchase.
We have been referred by the counsel for the complainant to the case of Richards v. Chase, 2 Gray 383, arising under the Massachusetts homestead act of 1851, the third section of which provided for the designation of a homestead in the deed of purchase, or by a subsequent writing, duly sealed, acknowledged and recorded, where the Supreme Court of that State, in construing the language of the fourth section of the same act, which provides that “ no conveyance by a husband, of any property exempted as aforesaid, shall be valid in law unless the wife join in the deed of conveyance;” decided that a mortgage, by the husband alone, of property designated as a homestead in the deed of purchase, was utterly void, although the property mortgaged were of far greater value than the homestead by statute exempted from levy upon execution. The court seem to rest their opinion chiefly upon the peculiar provisions of the third section of their statute, under which the property mortgaged had been designated in the deed of purchase as the family homestead. However sound this decision may have been under the special requirements of the Massachusetts enactment, (and we are not disposed to question its correctness, although we con
Entertaining these views of the meaning and true construction of the homestead act, and of the nature and characteristics of the right of homestead exemption, we arrive at the conclusion that although the homestead property of Twitchel and wife passed to Hatch, Huntoon and White, by the mortgage of September 5, 1854, nowholden by Hatch alone, subject to the right of homestead exemption, yet, as that right was personal to Twitchel and wife,
For these reasons the demurrer must be sustained, and the bill be dismissed as to Hatch, with costs. If, as we suppose, the only purpose of the bill was to obtain an assignment of the homestead against Hatch, it may as well be dismissed generally.
Demurrer sustained.