Wood v. Lord , 51 N.H. 448 ( 1871 )

Bellows, O. J.

In answer to the petition for a homestead, the defendant sets up two mortgages made by the husband of the petitioner in his lifetime to the petitionee and one Charlotte M. Wood, one mortgage dated November 21, 1853, and the other "July 22, 1854, and both conveying the lands in question to secure the payment of sundry promissory notes of the mortgagor, payable some to said Charlotte, and the rest to the petitionee. All of said notes were either given prior to January 1,1852, or in renewal of notes given before that time.

The answer alleges, also, that before the death of the husband, which was in August, 1870, the petitionee had acquired all the interest of the said Catharine in said mortgagés and the debts thereby secured, and that no part of these debts has ever been paid. It is contended by the plaintiff, that as the husband acquired this land after January 1, 1852, the homestead 'right at once attached, and these debts were not privileged. But we think it very clear that the family homestead was exempt from attachment only as against debts accruing since January 1,1852, without regard to the time when such homestead was acquired. It is well settled, also, that a promissory note, given after January 1, 1852, to review a debt existing before that time, retains its character as a privileged debt, the substantial nature of the debt not being changed, but the security only. Strachn v. Foss, 42 N. H. 43; Weymouth v. Sanborn, 43 N. H. 171; Ladd v. Dudley, 45 N. H. 61. It is objected, also, that in respect to the note of $700, guaranteed by John B. Wood, the husband, enough is not stated to show an existing liability, if this be so, as is quite probable, the answer can readily be amended if if the facts will warrant it.

We then have a case of mortgages made by the. husband alone in 1853 and 1854, while the homestead act of 1851 was in force, to secure the payment of debts that accrued prior to January 1, 1852; and in respect to these mortgages, it must be considered as settled that the right of homestead does not exist. Strachn v. Foss, 42 N. H. 43. It is obvious that the homestead was not exempt from attachment and execution as against these debts, and the .prohibition against conveyances by the husband applied only to property so exempt; and therefore it was held, in Strachn v. Foss, that the husband alone could mortgage property situated like this.

So far the rights of the petitionee were governed by the law of 1851, and were vested. The question then arises in respect to the equity of redemption. That was sold on execution against said John B. Wood, in November, 1854, to one Roberts, and by him conveyed to the pe-titionee. It does not appear, however, that the debts for which it was so sold were privileged as against the homestead. The widow, therefore, under the law of 1851, would ordinarily be entitled to homestead in the lands subject to the mortgages. Norris v. Moulton, 34 N. H. 392; Norris v. Morrison, 45 N. H. 490. Nor would the fact that she was compelled by the mortgagee to leave the premises in March, 1861, in the lifetime of her husband, deprive her, of this right; neither would the fact that the husband paid rent to the' mortgagee affect her. Atkinson v. Atkinson, 40 N. H. 249; Meader v. Place, 43 N. H. 307. But the plea alleges that in January, 1862, the petitioner became the owner of another dwelling-house and land, and that she has ever since owned and occupied it as a homestead; and if this is true, it is a good answer to the petitioner’s claim. A person can have but one homestead at the same time, and, upon acquiring a new homestead, the old one is necessarily abandoned. Horn v. Tufts, 39 N. H. 478; Nims v. Bigelow, 45 N. H. 347. From the leaving of the old homestead, it would not however necessarily follow that it was abandoned as such. It might be for a mere temporary purpose, and with tlie intention to return, and the new home might be occupied merely for the time being, not intending to make it the homestead. This would ordinarily be a question of feet for the jury; but here it is expressly stated that the petitioner owned and occupied the new place as a homestead ever since 1861, and unless that is- disproved it is an answer to this petition. The law, as to the effect of acquiring a new homestead, would be the same under the General Statutes as under the law of 1851; but should it be found that a new homestead had been acquired in this case, a question might arise as to the operation of the General Statutes upon the claims of the parties here. The question might be one of some difficulty, and as it is not necessarily now raised, and may not be at all, we have not considered it. Case discharged.