Dunham v. Dunham

• Decision Date: 06 November 1879
• Parties: Susan R. Dunham v. Alexander B. Dunham
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

128 Mass. 34

Susan R. Dunham v. Alexander B. Dunham

Supreme Court of Massachusetts

November 6, 1879

Nantucket. Writ of entry to recover a parcel of land in Nantucket. Plea, nul disseisin. Trial in the Superior Court before Wilkinson, J., who allowed a bill of exceptions in substance as follows:

The demandant derived her title to the demanded premises under a deed dated April 11, 1871, by which John R. Easton, "in consideration of $ 750 paid by Susan R. Dunham, wife of Alexander B. Dunham," conveyed the land in question with the dwelling-house thereon "unto the said Susan R Durham." After the description of the premises was this clause: "to be held by said Dunham as a homestead." Then followed the habendum, "to the said Susan R Dunham, her heirs and assigns, to her and their use and behoof forever."

At the time the deed was given, the demandant and tenant were living together as husband and wife; the entire consideration for the deed was paid by the husband, and no part thereof came from the wife. The tenant was then a householder having two minor children, and they occupied the premises together until February 1877, when the wife and children left, and the tenant has continued to occupy the premises to the present time. By a decree of the Supreme Judicial Court at November term 1878, in the county of Bristol, the demandant was divorced from the tenant, for the cause of extreme cruelty and no order was passed respecting alimony or the property of the parties. Two children of the parties are living, one twenty-four years of age, and the other nineteen. The tenant is, and always has been, in possession of the premises, since the giving of the deed; and the demandant has not been in possession or occupation of any part of the premises since February, 1877.

Upon this evidence, the tenant asked the judge to rule that the demandant could not maintain her action. The judge refused so to rule, and directed a verdict for the demandant. The tenant alleged exceptions.

Exceptions overruled.

J. Brown, for the tenant.

G. Marston, for the demandant.

Soule J. Colt & Ames, JJ., absent.

OPINION

Soule, J.

The deed to the demandant contains a statement that the premises are to be held "by said Dunham" as a homestead. This must be interpreted as meaning that they are to be so held by the grantee. The habendum is to her and her heirs and assigns to their own use. A declaration that the premises were...