Keyes v. Bump

• Decision Date: 06 June 1887
• Citation: 9 A. 598,59 Vt. 391
• Parties: KEYES and others v. BUMP and others.
• Court: Vermont Supreme Court

9 A. 598

59 Vt. 391

KEYES and others

v. BUMP and others.¹

Supreme Court of Vermont. Rutland.

June 6, 1887.

Appeal from chancery, Rutland county.

This was a petition to foreclose a mortgage, heard on petition, answer, and a special master's report, Rutland county, September term, 1886; Veazey, Ch.; decree pro forma for the orator for the amount reported by the master, and interest; appeal by the defendants. The facts sufficiently appear in the opinion.

Lawrence & Melden, for orator.

Mere intention of future occupancy is not sufficient to constitute a homestead. True v. Estate of Morrill, 28 Vt. 672; Faut v. Talbot, 15 Reporter, 712; Hansford v. Holdam, 14 Bush, 210; Lee v. Miller, 11 Allen, 37; Spaulding v. Crane, 46 Vt. 292.

L. W. Redington, for defendants.

WALKER, J. This is a petition to foreclose two mortgages on certain premises described therein, and situated in Castleton, erected by D. W. Bump, the intestate of the defendant administrator,—one to E. D. Keyes and N. R. Brady, dated June 29, 1880; the other to E. D. Keyes, C. A. Perkins, and C. E. Keyes, dated September 23, 1885,—both conditioned for the payment of money then due the mortgagees, and which should thereafter become due them from the mortgagor on account of goods sold and delivered by them to him, and for the payment for all goods thereafter sold and delivered by them to him, and for the payment of all notes and renewals thereof which the mortgagor was then or thereafter should be owing to them, and for all money then due or thereafter to become due them from him for whatever cause or consideration, or by reason of any undertaking or liability of the mortgagor to the mortgagees. The consideration named in each of said mortgages is $800; and it was understood that Bump was to have credit with the mortgagees to that amount, and that he was not to exceed that amount in notes and accounts taken together.

The mortgagor, Bump, died November 2, 1885, leaving a widow and minor child, who now claim a homestead in the premises thus mortgaged by him. Bump and his wife never lived upon the premises in question, and she did not join with her husband in the execution of the mortgages. Bump bought the premises in the spring of 1880, which then consisted of about one-half acre of land, and he owned no other real estate at the time of his death, nor at the time of the execution of the mortgages. At the time he bought the premises, his family lived in a house at Castleton near the mortgaged premises, which he rented, and where they continued to live until his death. In the spring of 1880, immediately after buying the premises, the intestate erected the two-story wood building now standing thereon. The lower story was then finished as a country store, and was thereafter occupied as such by him. In the winter of 1883-84, the second story of the building was finished, and its arrangements adapted to and made suitable for occupation by a family. In January, 1884, upon the completion of the second story, Richard Gleason moved into it as a tenant under a parol contract between him and the intestate, by which he was to pay $50 a year rent; $4 to be paid each month for eleven months, and $6 for the twelfth month. And without other or further agreement he continued to occupy it with his family, and pay rent, until December 17, 1885. The building was not otherwise occupied during the life-time of the intestate, except the room first finished up-stairs was occupied for a short time by Mrs. Bump's brother.

1. It fully appears from the master's report that, at the date of the execution of the first mortgage, the building on the premises was used by the intestate only for the purposes of a country store; and that, at the date of the execution of the second mortgage, the intestate was using the lower story for the purposes of a country store, and Gleason was in possession of the second story as a tenant, paying rent under a tenancy which had ripened into a tenancy from year to year. Hanchett v. Whitney, 2 Aiken, 240, 1 Vt. 311; Roe v. Lees, 2 W. Bl. 1173; Den v. Drake, 14 N. J. Law, 523. The premises were not used by the intestate as a homestead in his life-time. The master finds that, during a period embracing the dates of the execution of both of the mortgages in suit, the intestate had an intention at some indefinite future time, when circumstances should be favorable to his doing so, to occupy the second story of the building with his family as their home.

It is contended by the defendants that the intention of the intestate to occupy the second story of the building on the premises as a family home, at some indefinite future time, was a keeping of the premises as a homestead within the meaning and spirit of the statute. We think this contention is not sound. The homestead right which passes to and vests in the widow and minor children of the head of the family dying intestate, is defined in the statute as "a dwelling-house, out-buildings, and the land used in connection therewith, not exceeding $500 in value, and used or kept by such housekeeper or head of family as a homestead." The statute requires more than the naked intention of the bead of the family to make the premises his family home at some indefinite future time, to establish a homestead right. One of two conditions is essential to the existence of a homestead right under the statute. There must be either an actual personal use by the head of the family of a dwelling-house, and lands appurtenant, as a family home, or an actual keeping by him of the same for a family home with the present right and purpose of so using it. A personal use is not claimed in this case, and the facts do not show a keeping of the premises with a present right and purpose of using them as a family home.

To give the construction contended for to the word "...