Atkinson v. Atkinson , 40 N.H. 249 ( 1860 )

Bell, C. J.

It is urged that it was immaterial whether the petitioner was living with her husband or not, at his decease; she was still his wife, and her legal right to a homestead could not be waived. Her removal from the premises during her husband’s life could not deprive her of her right, nor her continued absence after his death. It is inconsistent with the statute to allow a waiver of the homestead without deed.

By the terms of the statute, section 1, no conveyance or alienation, by the husband alone, can operate as a waiver or release of the wife’s interest. Such a conveyance may put a stranger in the actual occupation of the whole premises, occupied as a homestead, against the wishes and utmost opposition of the wife. She is bound by duties to her husband, which require that she should accompany Mm, if he chooses to change his residence. She has no effectual means of opposing his wishes in that respect. He may, of course, compel her to leave the homestead he has sold, and, upon his death, she has no means to recover possession but by recourse to legal proceedings. If her ultimate right to a homestead would be affected by a removal, thus forced upon her, the husband would have the power to put an end to her interest when he pleased, and the object of the statute would be defeated. If it would not, it would seem that no mere removal would operate as a waiver of her right.

Whether her removal would impair her right, after her homestead had been assigned to her, it is not necessary now to consider.

None of the facts alleged in the second plea constitute a bar to this petition. This question arose in another form, and was considered and decided in Atkinson v. Atkinson, 87 N. H. 436.

The plea that the petitionee does not hinder or prevent the occupation of her homestead by the petitioner, is immaterial. The object of her application is to define and limit her right, so that she may occupy her part in severalty. She has an equal right to ask the action of the court to assign her share to her, whether she is in possession or not. It would be a good defence to allege that, by an agreement of parties, a partition has been in fact made, and she was in possession under that partition; but nothing like that is pretended here. It would not be a defence that her dower had been assigned to her, and she was in possession of it, even though its value exceeded $500. For aught that appears, this is the whole substance and effect of this plea.

It has been urged that this plea is to be regarded as a confession, and judgment should be rendered upon it that partition be made; but we think it cannot be regarded as any otherwise a confession, than as every plea which does not set up a good defence, is an implied admission of the cause of action. TJpon a confession, judgment would be rendered for the petitioner, regardless of the other pleas, but upon such an implied admission judgment cannot be rendered unless there is no other sufficient plea.

The fourth plea raises the question, whether a request or demand to assign a homestead, is required before filing a petition for an assignment, by analogy to the law relative to the action for dower. And we find nothing in any of the statutes to justify such a requirement. It is a statute requirement in the case of dower, but it is not required in any other case of petition for partition. It does not seem to us to be necessary.

It is contended that this petition cannot be sustained, as a petition for partition, because the homestead right is merely inchoate, and not an estate in the premises, while a seizin in fact is necessary to sustain such a petition.

In the case of Brown v. Brown, 8 N. H. 93, it was held that a party, whose only interest is a remainder after an estate for life, cannot maintain a petition for partition. There is little similitude between such a remainder and an estate which entitles one to immediate possession, and which requires nothing but to be defined and marked out, to give a seizin in fact of the land. So it was held in Whitten v. Whitten, 36 N. H. 326, that a petition for partition could not be maintained by one whose only title is a right to euter for breach of a condition. After such an entry had been made, the claim of such a petitioner would resemble the interest of the petitioner here.

But in Norris v. Moulton, 34 N. H. 392, it was held that the widow, having an inchoate right, was entitled to have it assigned to her in severalty, and that the court of probate had power, by the statute, to make the assignment where the husband died seized of the whole premises; and .in Atkinson v. Atkinson, 37 N. H. 436, it was expressly held that the proceeding by petition for partition is the appropriate remedy for a widow to obtain an assignment of her homestead right, against an assignee of the hus-. band. This question must, consequently, be regarded as settled here.

If this admitted a doubt, upon common law principles, still, it seems, it would be the duty of the court to allow the extension of the remedies furnished by the law in analogous cases, to cases arising under new statutes, which would otherwise be destitute of any appropriate remedy.

Demurrer sustained.