The opinion of the court was delivered by
Prout, J.
These exceptions present three questions : First, as to the disallowance by the referee of the two last items of the plaintiff’s account. The relation, out of which the claim to which these items refer originated, was, as the report shows, a “ sort of partnership,” but whether of such a character as to invest and impose upon the parties, as between themselves, the rights and liabilities of copartners, does not appear. Sharing in the profits and loss of the business is not decisive as between the parties, as this may have been merely an arrangement with a view to compensation for services rendered in the employment of the plaintiff, the amount of which was to be dependent upon the success of the business in which the parties were engaged and interested. This *406would be a sort' of partnership. It is not, however, claimed that the referee in his finding and conclusion made any mistake except as to the effect he gave the judgment in favor of Mr. Cahoon. We do not think that recovery or adjudication conclusive to the extent claimed for it by the plaintiff, as it does not necessarily show that the subject matter of the litigation involved in those suits, in the prosecution and defence of which Cahoon’s claim originated, involved the defendant’s interests or property. He may have been so connected with, and participated in those suits, as to make himself liable to the attorney engaged in them, when as between him and the plaintiff there was no liability whatever. If the defendant was only in the employment of the plaintiff and had no other interest,'and it does not sufficiently appear that he had, although thus connected with those suits, this might be so. The plaintiff failing, then, upon the facts reported, to establish a liability to pay one half of those expenses to him, without troubling ourselves with the other grounds of defence, the promise relied upon by the plaintiff does not aid him. That arose out of a proposition to the defendant, if he would secure a payment of a part of this claim, it should be in full. This offer the defendant accepted, but nothing was done, and the referee finds that it might have referred to other dealings of the parties, which were after-wards settled.
Second, as to the discharge of the trustees, G-. H. and J. M. Weeks.
We assume upon the facts reported that the principal defendant acquired his interest in the farm, which he conveyed to the trustees, in 1853 or 1855. It was conveyed to the trustees by the defendant and his wife on the 16th of February, 1865, and the referee finds that they had lived on it ten or twelve years. The record title was in a brother of the defendant and one Spaulding, for purposes of security. It was sold to the trustees for two thousand and fifty dollars, which was paid by applying eight hundred dollars which the defendant was owing the trustees, by paying Spaulding and the defendant’s brother seven hundred dollars, the amount of their claims, and by giving a note for five hundred dollars to the defendant’s wife, for the amount of which the plaintiff seeks to *407charge the trustees in this case. This last note was given for the true balance clue on the purchase of the farm, and was bona fide designed to. secure the value of the homestead interest to the defendant’s wife, who refused to convey unless she could have it secured to her. We think upon these facts the defendant had a homestead interest in the property, and that the case, in this respect, is within the reason and spirit of the statute creating it. The essential condition of this right and interest is ownership and occupancy by the husband and family, and the statute applies to an equitable as well as legal ownership ; an incumbered as well as an unincumbered estate. “ There is nothing in the nature and policy of the exemption (of the homestead) which makes it any more applicable to” the one than the other, and the act of 1855 (Gen. Sts., 456 §5) as held in Mc Clary et al. v. Bixby admr., 36 Vt., 254" court="Vt." date_filed="1863-08-15" href="https://app.midpage.ai/document/mcclary-v-bixby-6577577?utm_source=webapp" opinion_id="6577577">36 Vt., 254, “that after the homestead is set out to the widow and minor children, they shall be respectively seized of the same estate in such homestead as that of which such housekeeper or head of family should have died seized, strongly implies that it was the design of the statute to secure a homestead right in lands to which the title of the husband and father was limited and special.” This interest of the defendant, being then, as we hold, exempt from attachment, except as to debts that were contracted prior to its acquisition, and this exemption being for the benefit of the family as well as of the husband, and which could not be conveyed unless the wife joined in its conveyance, its value on a sale may be set apart and secured to the wife, especially, in view of the act of 1865 (Session Laws, 25,) which in terms exempts from attachment or trustee process the proceeds of any property sold and conveyed which was at the time of the sale exempt from execution. The question is then as to the time when the plaintiff’s claim allowed by the referee accrued, whether before or after the acquisition of the homestead by the defendant, in 1853-5. The allowance of the referee is made up in part of two notes given in February, 1865, which is to be regarded, for the purposes * of this question, as the time of the accruing of that portion of the claim. The balance of the allowance consists of an item which accrued in 1858, two items which accrued fin 1855, and an *408item wbicb accrued in 1854, according to the plaintiff’s specification ; all subsequent to-the time when the act exempting homesteads from attachment took effect. Now if there is any doubt as to some of these items, there is none as to the notes, and admitting that we could, on the report, separate the plaintiff’s claim, upon the question as to the trustees’ liability, dates become material, and the time of the accruing of the several claims, in respect to which we are asked to charge them, must appear affirmatively to have been before the defendant acquired the homestead, to enable us to say that they are chargeable as to either. This renders the inquiry as to the intention of the parties in disposing of the note immaterial, as, if the proceeds of the homestead are not subject to attachment, the plaintiff has no legal ground of complaint and can not impeach its validity.
Third, as to the liability of the trustee Evans for a mow of hay and the difference in sheep.
The hay was purchased and the sheep exchanged on the 8d of February, and there is nothing in the report to show that at that time the trade as to either was not Iona fide, or that it was with a view of defrauding or delaying creditors. The note given for the homestead interest was purchased by this trustee afterwards and subsequent to the 16th of February, and all the facts found by the referee relate to what Evans knew of Stearns’ intention and purposes, if fraudulent, at a time subsequent to that date. Consequently if this trustee at that time knew all that is claimed, the trade for the hay and sheep was in good faith for aught that appears, and valid as against creditors. If he afterwards discovered or became apprized that his vendor had an illegal purpose in view, he was not bound to throw up the trade, but was at liberty to retain and pay for the property, as he did, before the process in this case was served upon him. It was therefore correctly adjudged that he was not chargeable in respect to this property.
The judgment of the county court is affirmed.