Babb v. Babb , 61 N.H. 142 ( 1881 )

The plaintiff cannot recover in this action on any claim of a homestead right in the land, the homestead not having been assigned; nor in this proceeding could the jury rightfully determine the value of the land. Tidd v. Quinn, 52 N.H. 341, 343.

If the plaintiff can recover at all, it must be by virtue of her title derived from her husband's conveyance in fee simple; and if that conveyance was in fraud of his creditors, her title fails without regard to the value of the land, and notwithstanding her homestead right. If the conveyance was not fraudulent, the plaintiff's right of recovery would be clear. If fraudulent, though the question would then arise, whether, in spite of that fact, she would be entitled to a homestead on appropriate proceedings to assign and set it out, she could not recover in this action. The question of fraud in the conveyance was material upon the trial, and the instructions upon the subject were erroneous. The verdict is set aside, and a

New trial granted.

BLODGETT, J., did not sit: the others concurred.