60 N.H. 184 | N.H. | 1880
The homestead right exists in favor of the wife in any interest of the debtor in his homestead real estate (G. L., c. 138, s. 1), and the right in equity to redeem the homestead from a mortgage signed by the wife is such an interest. Norris v. Moulton,
The general rule that enforces contribution when the estates of two persons are subject to the same mortgage, which one of them pays for the benefit of both, does not apply when the equities are not equal. The mortgagor, who conveys a portion of the incumbered premises, and afterwards redeems the mortgage, cannot claim contribution from the purchaser, for he was primarily under obligation to pay the mortgage. Nor can a subsequent purchaser call on a prior one for contribution, for he has only the rights of the mortgagor. Kilborn v. Robbins, 8 Allen 466. The assignee of the plaintiff's husband, and his grantee, the defendant, took the right in equity to redeem, subject to the plaintiff's homestead right. The equities of the plaintiff and defendant were not equal. Her right was superior to the defendant's, and he having satisfied the mortgage, she was entitled, after redeeming the mortgage from him, to a homestead without contribution.
It is unquestionably settled, that a widow claiming dower in an equity of redemption must in equity contribute her ratable proportion of the amount paid by an heir, or holder of the equity to redeem a mortgage in which dower has been released, before she can be let in to her dower right. Swaine v. Perine, 5 Johns. Ch. 482; Gibson v. Crehore, 5 Pick. 146; Cass v. Martin,
In Norris v. Morrison, it was said that on the questions of redeeming from a mortgage and of contribution, the assignment of the homestead right should be governed by the same principles which govern the assignment of dower. In that case the homestead and dower rights were coupled together as one interest, and it appears to have been taken for granted by the plaintiff's counsel, that if the circumstances required contribution in the case of dower, they also did in the same way in the case of homestead. The distinction between the two was not discussed.
The rights of the owner of a homestead and of the holder of the equity of redemption are not equal, nor upon the same footing in equity. In the assignment of dower, when the rule requiring contribution applies, the equities of the dowress and of the holder of the equity of redemption are equal. However small the equity of redemption may be in value, the dowress can take only one third, and the holder of the right to redeem always takes two thirds, and neither can shut out the other. The two rights exist together in time, one presumes the other, and their relative value is always the same. In the case of a homestead, the right is paramount to all claims except that of the mortgagee and his assignees. It is, as against other creditors and assignees of the mortgagor, an absolute right to a homestead of the full value of five hundred dollars before any right of theirs can attach. Their rights in any estate in which a homestead exists are postponed to the homestead right, and are entirely excluded by it, when the estate does not exceed in value the sum of five hundred dollars. Tucker v. Kenniston,
Case discharged.
CLARK, J., did not sit: the others concurred. *187