Heaton v. Sawyer
| Decision Date | 11 September 1888 |
| Parties | HOMER W. HEATON AND ANOTHER v. WELTHY J SAWYER |
| Court | Vermont Supreme Court |
MAY TERM, 1887
EJECTMENT to recover the seisin and possession of a farm of land in Berlin. Heard on an agreed statement, March Term 1887, VEAZEY, J., presiding.
Judgment pro forma and without hearing for the plaintiff for the seisin 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. The facts appear in the opinion.
The judgment of the County Court is reversed, and judgment rendered for the plaintiffs to recover the possession of the premises, and the cause is remanded for the assessment of the damages.
T J. Deavitt and Heath & Willard, for the defendant.
Present ROYCE, Ch. J., Ross, POWERS and TYLER, JJ.
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 incohate 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 these 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 received 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 claims 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 claim 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 sec. 1894, R. L., it is given to a housekeeper or head of a family, and must be used or kept by such housekeeper or...
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