Benson v. Aitken

Baldwin, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring.

[164]This was an action for the foreclosure of a mortgage. The mortgage was executed by the husband alone. The premises, at the time, had been leased by the mortgagor, and were in the possession of the lessee. They had been occupied by the defendant and a former wife, five children living with them. Upon the death of the first wife, four children were sent away to a boarding school, and the premises leased to a tenant, who took possession; one of the considerations of the lease being that the tenant should board and take care of an infant child. The mortgage was made during the pendency of this lease, and while the premises were in possession of the tenant. The defendants, Aitken and wife, after the execution of this mortgage, went into possession of the premises.

We think, under the circumstances, the mortgage bound the property. The present wife had never occupied the premises. It certainly never was her homestead. The lease itself, made while the defendant was unmarried, deprived the premises of the apparent character of homestead, at least so long as the term lasted.

It showed a purpose of abandonment for a given period, and his sole act at that time was sufficient to create an abandonment, so as to destroy the homestead character. If before any purpose of resuming the occupancy of the premises was unequivocally manifested, and before the last wife had any rights in the premises, he disposed of them to an innocent purchaser, neither he nor she can complain of such disposition. The occupancy of the premises by husband and wife is only an inference of homestead dedication, or a presumption that the property is homestead; but when this occupancy ceases by the act of him whose sole act is effectual to change the homestead nature of the property, no presumption or inference arises that the husband means to resume the occupancy of the premises as the homestead of his family. After the death of his first wife and his disposing of the possession of the property, and the ceasing to use it for a homestead, a purchaser or a creditor might -well consider that it was no longer the homestead of the family; and the mere fact that the husband married again afforded no presumption that he meant to resume the possession, or that his abandonment of the premises or their occupancy was for a temporary purpose.- We see nothing in the other circumstances insisted [165]