Austin v. Stanley

46 N.H. 51

• Court: Supreme Court of New Hampshire
• Decided: June 15, 1865
• Status: Published

Opinion

Doe, J.

The Homestead Act, ch. 1089, Laws 1851, provides that the family homestead of the head of each family shall be exempt. "Homestead” means home place, or place of the home, and the question whether the premises were exempt from the levy of the defendant’s execution, is to be determined by the rules applicable to residence or domicile — rules of familiar and frequent application in questions of right to vote and liability to be taxed. The statute was specially intended to secure to debtors and their families, the shelter of the homestead roof; not to exempt mere investments in real estate, or the rents and profits derived therefrom.

. Temporary absence from the premises, with intent to retain the home there and to return to it, would not be an .abandonment of the home or a relinquishment of the homestead right. Davis v. Andrews, 30 Vt. 678; Taylor v. Boulware, 17 Texas 74; Benedict v. Bunnell, 7 Cal. 245; Moss v. Warner, 10 Cal. 296. It would- probably be a reasonable conclusion from the agreed facts, that the premises were not exempt; but the plaintiff’s intention is not stated, and it would seem that it ought to appear in this case. During the temporary absence, his possession might be retained by agents or servants; but if he transferred his occupation and right of possession to a tenant, the exemption might cease.

Dase discharged.