Heaton v. Sawyer
| Decision Date | 11 September 1888 |
| Court | Vermont Supreme Court |
| Parties | HEATON et al. v. SAWYER. |
Exceptions from Washington county court; before Justice VEAZEY.
Ejectment to recover the seizin and possession of a farm of land in Berlin. Heard in an agreed statement, March term, 1887, Washington county. Judgment pro forma, and without hearing, for the plaintiffs, for the seizin and possession of the farm in question, except the two pieces set to Norman D. Sawyer in his distributive share in his father's estate; and it was also pro forma adjudged that the defendant or her children have a homestead right in the excepted pieces to be set out, if this judgment is sustained. Both parties excepted.
T. J. Deavitt and Heath & Willard, for defendant.
The plaintiffs have no right or title to this homestead. A married man's sole deed does not convey any interest in the homestead. R. L. § 1904; Abell v. Lothrop, 47 Vt. 375; Day v. Adams, 42 Vt. 516; Canfield v. Hard, 58 Vt. 217, 2 Atl. Rep. 136. In Abell v. Lothrop, 47 Vt. 375, it is determined that under circumstances like those in this case the homestead right still continued, and could be asserted after decree of foreclosure. "A divorce obtained by the wife will not deprive her of her homestead rights acquired during cov erture in her husband's real estate, where she continues to reside with her children." Blandy v. Asher, 72 Mo. 27; Van Zant v. Van Zant, 23 Ill. 536; Bonnell v. Smith, 53 Ill. 375; Thomp. Homest. & Ex. §§ 1, 82. The divorced wife, being charged with the custody of the children, continued the head of the family, and kept the homestead. Sellon v. Reed, 5 Biss. 125. She and the children never abandoned the homestead. Labaree v. Wood, 54 Vt. 452. Constant occupancy is not required. Bank v. Gale, 42 Vt. 27. Even if the defendant has no right to a homestead, nevertheless the children have. Blandy v. Asher, 72 Mo. 27; Cadwalader v. Howell, 18 N. J. Law, 138; Moore v. Dunning, 29 Ill. 135; White v. Clark, 36 Ill. 285. The case of Blandy v. Asher, was a similar one to the case at bar. The homestead exemption is humane in its character, and the statute should receive a liberal construction in view of the objects aimed at by it. Jewett v. Guyer, 38 Vt. 218; True v. Morrill, 28 Vt. 674; McClary v. Bixby, 36 Vt. 254.
J. H. Lucia, for plaintiffs.
The first part of the judgment was correct so far as it went. E. L. § 1250; Chapin v. Scott, 1 D. Chip. 41; Dodge v. Page, 49 Vt. 137; Canfleld v. Hard, 58 Vt. 217, 2 Atl. Rep. 136. The error consisted in limiting the recovery to a part instead of extending it to include the whole farm. The second part of the judgment was erroneous, because it is wrong on principle, and contrary to authority. The theory of the law is that the "widow or minor children," or "widow and minor children, if there are both," on the death of the "housekeeper or head of a family," take the homestead. But the divorced woman is not the wife, and does not become the widow. Thomp. Homest. & Ex. § 8; 2 Bish. Mar. & Div. § 705; Whitsell v. Mills, 6 Ind. 229; Chenowith v. Chenowith, 14 Ind. 2; Dobson v. Butler, 17 Mo. 87; Moore v. Hegeman, 27 Hun, 68; In re Ensign, 37 Hun, 152; Webst. Diet, as to word "Widow;" Worcest, Dict.; Rap. & L. Law Dict. The Heaton & Reed mortgages became operative, and included the homestead as soon as the divorce was granted. Whiteman v. Field, 53 Vt. 554. Mrs. Sawyer had an inchoate homestead right in the premises covered by the Heaton & Reed mortgages, now owned by the plaintiffs, as she did not join in the conveyance; but this right is absolutely cut off by the divorce. "A divorce obtained by a wife bars her homestead right in her husband's property unless such right is reserved by the decree of divorce." Wiggin v. Buzzell, 58 N. H. 329. The homestead law of New Hampshire is, in effect, similar to our own. Gen. St. c. 124. In Brandon v. Brandon, 14 Kan. 342, the court say: "In granting a divorce, whether on account of the fault of the wife or the husband, the court has power to award to her the possession of the homestead." Woods v. Daois, 34 Iowa, 264; Chenowith v. Chenowith, supra; In re Ensign, supra. Mrs. Sawyer has acquired no homestead rights since the divorce. She took possession under foreclosure of her alimony mortgage; but since November, 1876, when the foreclosure of the plaintiffs' mortgages became absolute, her possession was that of a trespasser. Calderwood v. Tevis, 23 Cal. 335; Kemerer v. Bournes, 53 Iowa, 172; Mann v. Rogers, 35 Cal. 316; McClurken v. McClurken, 46. Ill. 327.
The controversy is whether the defendant has a homestead in the premises sued for. She was the wife of Norman D. Sawyer, and while such had an inchoate homestead right in the premises against all the claims now held by the plaintiffs, except the Lydia Sawyer mortgage, which was given before she became the wife of Norman D. Sawyer. This mortgage did not cover the entire premises. While she was living with Norman D., as his wife, he executed three mortgages of the entire premises, which are held by the plaintiffs, and have been foreclosed. She did not join in the execution of either of these mortgages. After the giving of three mortgages, and after five children had been born to them, in 1873 the defendant procured a divorce from Norman D., and the custody of the five minor children. She secured as alimony to herself $1,000, and to the children, $1,000, and Charles H. Heath, Esq., was appointed trustee to hold and manage the children's $1,000, and both sums were secured by a mortgage from Norman D. on the premises. She then left the premises with the children, and resided for two years in Montpelier. Norman D. failed to pay the alimony as ordered by the court and required by the mortgage, and the mortgage was foreclosed, and the decree became absolute in April, 1875. She was put in possession of the, house and land on the westerly side of the road, not covered by the Lydia Sawyer mortgage, under a writ of possession issued to enforce the foreclosure of the mortgage securing the alimony to herself and children. She with the children have remained, and still are, in possession of this portion of the premises, and claim a homestead right therein. She has also been in possession, at times, of the whole farm. In 1875 the plaintiffs procured a foreclosure of the three mortgages given them by Norman D. Sawyer, making Norman D., the defendant, and Charles H. Heath, trustee of the five minor children, and Lydia Sawyer, defendants. They prayed to be allowed to redeem the mortgage to Lydia Sawyer, and did redeem it. The defendants all appeared by solicitor, and a guardian ad litem of the five minor children was also appointed and appeared. No mention was made in the bill that the defendant and the minor children claimed a homestead in the premises; and so far as appears the bill was allowed to be taken as confessed by all the defendants, and the decree became absolute. Norman D. lived in the house on the westerly side of the highway with the defendant and her children, as their tenant, until his death, in 1885. These are the substantial facts agreed upon by the parties as determinative of their rights. On these facts the defendant claims that she has a homestead in the house and land on the westerly side of the highway, which was not covered by the Lydia Sawyer mortgage; or, if she has not such a homestead, the children have, and she can defend the suit in ejectment against her alone in the right of the children; and it is agreed that the right of the children to a homestead therein shall be determined in this suit.
In examining these claims it will be helpful to keep in mind the statutory provisions in relation to the homestead right. It is a right wholly created and regulated in regard to its conveyance and descent by statute. By section 1894, R. L., it is given to a housekeeper or head of a family, and must be used or kept by such housekeeper or head of family as a homestead. All who take an interest in the homestead other than the housekeeper or head of a family take through him, and because of their...
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