46 Vt. 292 | Vt. | 1873
The opinion of the court was delivered by
I. From the pleadings and evidence in this case, it is clear that at the time when Ililaud Hall, the intestate, executed the mortgage to the orator, he resided at the place called the Chase place, away from the premises in controversy, and not on those premises, although he was then iu possession of them, preparing them for a home, and afterwards did actually reside upon them. The most important question in the case is, whether under these circumstances, the intestate could at that time mortgage the promises, without his wife joining with him, so that the mortgage would hold the premises against the homestead right of his wife and children after his decease, or not. The statutes on this subject have been materially altered since that time, and the question is to be decided upon the statutes as they then stood: The statutes then in force provided that “ the homestead of every housekeeper or head of a family residing in this state, to the value of five hundred dollars — such homestead consisting of a dwelling
In view of the plain words of this statute and the exposition of them in the case's mentioned, and of these other considerations, it seems clear that under this statute nothing short of actual residence upon premises intended for a homestead, would give, the character of a homestead to them so as to cut off the right of the owner to alienate or mortgage them. The orator’s mortgage is therefore considered valid against the homestead claim set up in the defence.
II. It is also clear that Erasmus D. Hall discharged the Page-Morrison mortgage for the benefit of his mother, Sophia Hall, without payment of it by her, to help her estate in the promises to that extent. .She had an estate in the premises at that time, which had passed to her as a homestead right at the decease of her husband. Her estate was subject to the orator’s mortgage, but notwithstanding that, she had the equity of redemption of both- mortgages vested in her and her minor children. If she had paid off this Morrison mortgage to her son while so situated, aud procured him to discharge it, as that was prior to the
The decree of the court of chancery is reversed, and the cause is remanded to that court, with directions to enter a decree of foreclosure of the orator’s mortgage against all the defendants except Sophia Hall, and agaiust her, upon Ms redemption of the Morrisom mortgage in her hands, or tho deposit of the amount due on it with the clerk for her benefit.