Hyser v. Mansfield

72 Vt. 71 | Vt. | 1899

Munson, J.

The orator, an unmarried man without children, living with his mother in hired rooms and contributing to the expense, bought a piece of land upon which there was an old shop, and from time to time, as his other work permitted, made the changes necessary to convert the shop into a dwelling. Before these repairs were completed the defendants attached the property ; and after this attachment the orator and his mother moved into the building, where they have since kept house. The master finds that the orator bought and improved and kept the property with the intention of making a dwelling for himself and his mother; and that at and ever after the time of the attachment he was the housekeeper or head of the family, if an unmarried man without children can be such in law.

The orator could acquire a homestead, for an unmarried man without children can be the head of a family and a housekeeper. Pierce v. Cusic, 56 Vt. 418. The orator’s intention and preparations regarding the property which the defendants propose to' sell were sufficient to make it a homestead. West River Bank v. Gale, 42 Vt. 27; Rice v. Rudd, 57 Vt. 6; Woodbury v. Warren, 67 Vt. 251. The orator is entitled to have the threatened sale enjoined. A completed levy would be a cloud upon his title ; for the invalidity of the levy would not appear from an inspection of the record, and could be established only by proof of extrinsic facts. 3 Pom. Eq. Jur. sec. 1399 ; 6 A. & E, Ency. Law, 2d. Ed. 149. He has no remedy at law, for his possession of the property precludes the bringing of ejectment. 6 A. & E. Ency. Law, 2d. Ed. 159. He has not proceeded prematurely, for equity will prevent as well as remove a cloud. 6 A. & E. Ency. Law, 2d. Ed. 159; 3 Pom. Eq. Jur. sec. 1398, note.

Decree affirmed and cause remanded.