51 N.H. 448 | N.H. | 1871
In answer to the petition for a homestead, the defendant sets up two mortgages made by the husband of the petitioner in his lifetime to the petitionee and one Charlotte M. Wood, one mortgage dated November 21, 1853, and the other "July 22, 1854, and both conveying the lands in question to secure the payment of sundry promissory notes of the mortgagor, payable some to said Charlotte, and the rest to the petitionee. All of said notes were either given prior to January 1,1852, or in renewal of notes given before that time.
We then have a case of mortgages made by the. husband alone in 1853 and 1854, while the homestead act of 1851 was in force, to secure the payment of debts that accrued prior to January 1, 1852; and in respect to these mortgages, it must be considered as settled that the right of homestead does not exist. Strachn v. Foss, 42 N. H. 43. It is obvious that the homestead was not exempt from attachment and execution as against these debts, and the .prohibition against conveyances by the husband applied only to property so exempt; and therefore it was held, in Strachn v. Foss, that the husband alone could mortgage property situated like this.
So far the rights of the petitionee were governed by the law of 1851, and were vested. The question then arises in respect to the equity of redemption. That was sold on execution against said John B. Wood, in November, 1854, to one Roberts, and by him conveyed to the pe-titionee. It does not appear, however, that the debts for which it was so sold were privileged as against the homestead. The widow, therefore, under the law of 1851, would ordinarily be entitled to homestead in the lands subject to the mortgages. Norris v. Moulton, 34 N. H. 392; Norris v. Morrison, 45 N. H. 490. Nor would the fact that she was compelled by the mortgagee to leave the premises in March, 1861, in the lifetime of her husband, deprive her, of this right; neither would the fact that the husband paid rent to the' mortgagee affect her. Atkinson v. Atkinson, 40 N. H. 249; Meader v. Place, 43 N. H. 307. But the plea alleges that in January, 1862, the petitioner became the owner of another dwelling-house and land, and that she has ever since owned and occupied it as a homestead; and if this is true, it is a good answer to the petitioner’s claim. A person can have but one homestead at the same time, and, upon acquiring a new homestead, the old one is necessarily abandoned. Horn v. Tufts, 39 N. H. 478; Nims v. Bigelow, 45 N. H. 347. From the leaving of the old homestead, it