Brookfield v. Sawyer

39 A. 257, 68 N.H. 406

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1895
• Status: Published

Opinion

Blodgett, J.

Limited to its facts, the case presents but the single inquiry whether the fraudulent grantee of a homestead can maintain trespass (¡ware clausum., against a creditor of the grantor who has subsequently taken a part of it on execution. This inquiry is decisively answered by Currier v. Sutherland, 54 N. H. 475 (approved more or less directly in Tilton v. Sanborn, 59 N. H. 290, 291, and Provencher v. Brooks, 64 N. H. 479, 481), in which it was held that a conveyance of property which is exempt from attachment or levy may be fraudulent and void as to creditors; that the right of homestead, being personal to the parties in whom it exists, is not assignable, and cannot be set up as a defence by a fraudulent grantee ; and that such grantee cannot recover possession against a creditor of the grantor who has taken the homestead on execution.

While the decision in Currier v. Sutherland is doubtless not in accord with the majority of decisions in other jurisdictions (Thomp. H. & Ex., ss. 408-413; Bump Fr. Conv. (2d ed.) 242), it is nevertheless supported by a strong minority of them, as well as by its own “forcible reasoning” (Thomp. II. & Ex., s. 417), against which, in our opiniou, no satisfactory objection has as yet been urged.

Verdict set aside; judgment for the plaintiffs for $15 and interest.

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