Martin v. Harrington

• Decision Date: 31 May 1901
• Citation: 50 A. 1074,73 Vt. 193
• Parties: MARTIN et ux. v. HARRINGTON et al.
• Court: Vermont Supreme Court

50 A. 1074

73 Vt. 193

MARTIN et ux.

v. HARRINGTON et al.

Supreme Court of Vermont. Bennington.

May 31, 1901.

Appeal in chancery, Bennington county; Watson, Chancellor.

Petition by Edwin R. Martin and wife against C. N. Harrington, administrator, and others, for the appointment of commissioners to set out a homestead. In vacation following the June term, 1900, he cause came onfor hearing on the bill and a demurrer thereto. It was adjudged and decreed pro forma and without hearing that the demurrer be sustained and the bill dismissed. The orators appealed. Reversed.

The petition set out that the defendants herein had obtained a decree of foreclosure of the mortgage executed by the petitioner Edwin R. Martin, a married man, without the joinder of his wife, and covering their homestead. The petition further set out the reasons why a homestead right was not asserted in the foreclosure proceedings.

Argued before TAFT, C. J., and ROWELL, TYLER, MUNSON, START, WATSON, and STAFFORD, JJ.

Batchelder & Bates, for appellants.

Barber & Darling, for appellee C. N. Harrington.

TAFT, C. J. When the mortgage in question was executed, the mortgagor, a married man, was occupying the premises as a homestead. The wife did not join in the mortgage. Subsequently, having no children, the wife died, leaving the husband without family. The husband continued in the occupation of the premises as a housekeeper, with neither wife nor children, and subsequently married the petitioner. Avis A. The only question made in this case relates to the validity of the mortgage deed upon the death of the wife. Was the deed, upon the happening of that event, null, or did it become of force so as to cover the homestead? This question has never been before our courts. When the homestead act was first passed, section 5, No. 20, Acts 1849, provided that the homestead should not be alienated nor mortgaged by the owner thereof, if a married man, except by the joint deed of husband and wife, executed and acknowledged in the manner provided for the conveyance of the lands of married women. Under this statute it was held that the owner of a homestead, having a wife, might convey it by his own deed, and pass the title thereto during his lifetime, and that the wife could not assert her rights unless she survived him. Howe v. Adams, 28 Vt. 541; Jewett v. Brock, 32 Vt. 65. In Davis v. Andrews, 30 Vt. 678, the same rule is stated, although the question did not arise, as the court held upon the facts that neither of the plaintiffs had any right of homestead in the premises. After these cases were decided, the legislature altered the statute by No. 36, Acts 1860, providing that if the wife did not join in the execution of the conveyance it should "be wholly inoperative to convey any right, title or interest in such homestead, and the rights of the parties, and of all persons claiming under them or either of them, shall be and remain the same as if. no such deed had been executed." This section, in substance, has remained in our statutes until the present time without change, except that in the Revised Laws of 1880 the word "wholly" was omitted. Some years after the passage of this act, in the case of Day v. Adams, 42 Vt. 510, the claim was made with reference to the homestead in controversy in that suit that the wife could not assert her right until the death of her husband, but the court held that that question was not material, as the widow and children took an absolute title at the death of the husband, and had not waived their homestead right, but Peck, J., referring to the claim, said: "We are by no means prepared to assent to the proposition that the sole deed of the husband in such case would be effectual to disturb the occupancy of the husband and his family while they continued to occupy the premises as a homestead." The same question arose in the case of Abell v. Lothrop, 47 Vt. 375. The husband, mortgagor, was living and it was claimed that he was estopped by his deed from denying the title of the defendant under the mortgage, and that his deed had the effect to pass the title to the homestead during his lifetime, and that the rights of the wife and minor children to the homestead could only attach at his decease. The mortgage in that case had been foreclosed, the decree had expired without redemption, and a bill was brought in the name of the mortgagor, his wife and children, setting up a homestead claim in the premises, and asking that the homestead might be set out. The judge who wrote the opinion refers to the cases heretofore cited decided under the first homestead act, and then says, "Whatever may be said of these cases decided under the statutes then in force, we are all agreed that the statutes now in force relating to the homestead are sufficient authority for sustaining the bill in this case," and granted the relief sought And referring to the language of the present statute the court further said: "Surely, no more explicit language could be used to negative the right of the husband to convey either his own or his family's interest in the homestead. His deed is absolutely void. He has no capacity to deed, and the title to the estate remains as if no deed was executed." This is the only case that has been called to our attention in which this question was involved. The case of Abell v. Lothrop follows the words of the statute, and holds that the sole deed of the homesteader shall be inoperative so far as the homestead is concerned. It decides that the husband homesteader and his wife and children cannot be disturbed in their occupation of the homestead during the life of the husband and father by one claiming under the sole deed of the husband and father. But that is not the question before us, and the cases cited and some noted hereafter are referred to by way of argument, and on account of the claim made that they sustain the doctrine urged by the defendants in support of their contention; for, if the husband cannot successfully defend against the mortgagee when his wife andchildren are living, bow can he, when they are all dead, and he is the survivor?

Die validity of the sole deed of a husband is referred to in Whiteman v. Field, 53 Vt. 554, in which the question is discussed, and a conclusion arrived at that a deed executed when the wife was living would be operative to convey the estate, and that it would become operative when the incumbrance had been removed. In the opinion it is said: "The homestead right of the wife and minor children is inchoate, subject to be defeated by the abandonment of...