Howe v. Adams.

It must be obvious then, that the plaintiff's case is strictly casus omissus, and unless we accommodate the provisions of the act, so as to meet a case of this kind, it is apparent the creditors in plaintiffs place, either cannot levy at all upon such interest, or else they must levy upon an undivided portion of the whole interest, in comCourts often do accommodate the provisions of a statute to cases which they were obviously intended to cover, although not well suited to accomplish. But we should always hesitate to do this in cases altogether one side of the general purpose of the statute.

mon.

And here it seems to us the plaintiff's case is of this character, It cannot fail to strike all minds alike, that it never could have been the purpose, or among the purposes of this homestead law, to prevent the operation of the debtors conveyance upon the homestead interest, so that it could remain to enable prior creditors to levy upon it. If that had been designed or contemplated as a possible contingency, there would doubtless have been some provision applicable to such a case. It was no doubt intended that the debtor's conveyance should operate, as to prior creditors, the same it did before, that is, pass the estate. But they have not, in terms, so provided. But we are inclined to think that, as to creditors whose rights are superior to the homestead interest, the act should be so construed, and the limitation upon the conveyance only extended to those persons whose interests are liable to be affected by the exception in the statute, that is the wife and family, and creditors, whose interests are subordinate to the homestead interest.

At all events, if a residuum could be carried out by this kind of refinement, for the benefit of one never intended to have any such advantage, we do not feel that it is the duty of courts to invent a process by which such creditors may accomplish what the statute so obviously, never designed.

The creditors in such cases, if they could levy at all, must either levy upon an undivided interest in the homestead, or induce the legislature to make some provision, by which the homestead interest may be levied upon. We are so well satisfied that it was not the purpose of the legislature to create such an interest by the act, as could be levied upon separately, in a case like the present, that we could not feel justified in accomodating the present provisions of the act, to any such purpose.

Howe v. Adams.

The homestead law does not vest any title in the wife of the householder, as to the homestead. It is at most but a negative which she has upon the conveyance. The consent by deed is indispensable to the full effect of the conveyance. This must be by deed jointly with her husband. When that is obtained the conveyance becomes effectual from the first. It is much like a right of dower at common law, which the wife could only bar by joining in the conveyance in a prescribed form. But she had no existing title, and the conveyance of the husband was good as to every thing but the contingent right of the wife. And this right of dower she could not convey to any one but the grantee, unless she survived her husband, or until after his death. And if, subsequent to the deed of the husband, she joined in barring her dower, the deed of the husband thus become effectual, as from the beginning.

Now this homestead interest being an incumbrance upon the title for the purpose of effecting a particular object, the support and maintenance of the family in its home, whenever the purpose of the statute is effected in any other mode, as by the husband procuring another homestead, this incumbrance, or obstruction to the full operation of the former conveyance, ceases without any release of the wife. This shows very clearly that no other person ought to be allowed to assert this right of the wife, either in her behalf, or, as in the present case, for their own purposes. I take it to be too obvious to require argument, that one family cannot have more than one homestead at the same time. And that when a new homestead is obtained, the former one ceases. It is then a sort of lien, or mortgage upon the estate of the husband in favor of his wife, and nothing more; and when another one is obtained, it operates as an extinguishment or release. Now it is well settled that an interest of this kind in land is not the subject of a levy, even in favor of the creditors of the mortgagor, or person in whose power the lien exists, much less of any other one. The reason is that it is not a fixed, definite estate in the land, capable of appraisal and separation to the creditor in the execution; but is constantly liable to variation, and to be defeated altogether by matters not of record, or by deed, but resting altogether in oral evidence.

So in the present case, all the grantor had to do to render his deed of the 10th of February effectual, was to procure another

Howev. Adams.

But

homestead. It then becomes effectual in spite of every one. suppose he does this while the levy is progressing, or the day after the levy, is not the lien removed as effectually as if it were done the day before? It seems to me absurd to treat this mere lien of the wife as a definite estate which may be attached, or levied upon by the husband's creditors. It has been compared to her right of dower, at common law, but it is really inferior to that in one sense, inasmuch as it is not in the power of the husband to extinguish that right, while he may extinguish this at any moment, if he choose. And like the right of dower, at common law, this also becomes a fixed estate in the wife and family after the decease of the husband.

There is, too, one contingency in regard to the homestead interest, where it exists in gross after it is set out by a creditor levying upon the other portion of the estate. For if, after this, the husband do obtain another homestead, any of his creditors may doubtless levy upon his former homestead, not as a homestead, but as land belonging to the husband, by setting out another homestead, if the land is still connected.

The statute in regard to the homestead, requires that it should be occupied as such, or seems to require that, in order to its creation or, possibly, even continuance. And if so, it is not very obvious how this provision of the statute can be dispensed with. It seems very obviously not to have been the purpose of the legislature to give even a married man a homestead interest for the benefit of his wife and family, as against his creditors, unless he were a householder, and occupied it as a homestead, in the first instance. For the terms of the act are very specific, "occupied by such person as a homestead, and the yearly products thereof shall be exempt from attachment and execution." And how the interest can be continued without occupation some have questioned. If the debtor choose to board, or to reside in a hired house, or for any other reason, does not choose to occupy the homestead, and permanently breaks up his occupancy, it is supposed by some that the interest ceases. But I do not profess myself prepared to adopt this latter view at present; of the former views we entertain no doubt. Judgment reversed and case remanded.

Braley. French et al.

JOHN BRALEY v. WILLIAM S. FRENCH AND CELIM FRENCH.

An attachment of real estate is effected by the officer's leaving in the town clerk's office, a copy of the writ, with his return of such an attachment thereon. The making of the record or entries respecting it, which it is the duty of the town clerk to make, does not constitute any part of the attachment itself.

By such an attachment, the officer acquires no special property in the real estate, and has thereafter no control over the lien thereby created. This lien can only be released or discharged by the creditor himself.

It will be presumed, until the contrary is shown, that an attachment of real estate was made under the direction and with the assent of the creditor; and declarations of the officer, made after the attachment, are not admissible for the purpose of showing that the attachment was not so made.

EJECTMENT for a piece of land in Barnard. Plea, the general issue; trial by jury, May Term, 1855,-UNDERWOOD, J., presiding.

The plaintiff's evidence tended to show an attachment of the premises in question, as the property of Hiram Aikins, on the 12th of August, 1850, upon a writ in favor of the plaintiff's against the Aikins and others; a judgment recovered on said writ; the issuing of an execution and levying it upon the premises, before the expiration of the attachment lien. To defeat the title thus claimed, the defendants offered testimony tending to prove that, at the time said attachment was made, August 12, 1850, several other creditors of Hiram Aikins, made attachments of the same real estate, by causing copies to be left at the town clerk's office of Barnard, and that Gilman Henry was the officer who made the plaintiff's attachment, and several of the others; that afterwards, and before the session of the court, to which the plaintiffs writ was returnable, a negotiation was entered into between said Hiram and his attaching creditors, with the exception of the plaintiff, for the withdrawal of their attachments, and for the sale of the premises to the defendant, William S. French; and that he declined to purchase until all said attachments could be removed, and that this was made known to said Henry; that the other creditors withdrew from the office of the town clerk the copies which had been left in their suits, so as to enable French to make the purchase free and clear of their attachments, the town clerk having made no record or minutes of any of the attachments according to the statute; and

Braley v. French et al.

that said Henry, without the knowledge or consent of the plaintiff or his attorney, erased from the return on the copy of the plaintiff's writ which he had left in the town clerk's office, that part of the return that related to the attachment of real estate and substituted a return of attachment of certain personal property; and that he also withdrew said copy altogether from the town clerk's office; and that he told said Hiram Aikins, on that occasion, he had not been directed by the plaintiff to attach real estate; and that directly after all this, the defendant, William S. French, made the purchase, took his deed, and put it on record.

The defendant called the town clerk of Barnard as a witness, who produced his book of records of attachments which showed an attachment of said real estate, on the plaintiff's writ, as having been made August 12, 1850; and also produced a copy of said writ, and said Henry's return of such attachment thereon, and a minute on the back thereof, of its having been received for record, August 12, 1850, and proposed to show by said town clerk, that said copy was, in point of fact, delivered to said town clerk, by said Henry, and said record made as late as the winter of 1850'51, after the record of the defendant's deed; and that the town clerk made the minute on the back thereof, at that time, ante-dating it to the 12th day of August, 1850, by the request of said Henry, and made his record from that copy. To the admission of all said testimony the plaintiff objected, but the court admitted it, to which the plaintiff excepted. The court charged the jury that if said Henry, under the circumstances which the testimony tended to show, after having left a copy of the plaintiff's writ, and before any record or minutes thereof were made by the town clerk, withdrew the copy left on the 12th day of August, 1850, or erased therefrom the return of the attachment of real estate, to enable the defendant to take a deed of the premises unincumbered, from Hiram Aikins, and said defendant took his said deed and put the same on record before a subsequent copy of the plaintiff's attachment was left and recorded, as of August 12, 1850, then the defendant was entitled to a verdict, even though the plaintiff had no knowledge of such withdrawal or erasure by said Henry. To this charge the plaintiff also excepted. The jury returned a verdict for the defendant.