Hibbard, J.
It may be assumed that the plaintiff, at the time the alleged trespass wTas committed, was in possession of the premises in controversy. This is claimed by him, and is not denied by the defendant. That this is enough to entitle the plaintiff to maintain trespass against a mere wrong-doer is very true, but the decision of this case cannot turn on so narrow a view.
Both parties claim to own the premises, and the evidence of their respective titles is before us. Both claim under Eunice Smith; and it is conceded that on May 1, 1855, she owned the property, and that it was her homestead place, and was for that reason exempt from attachment or levy. On that day she conveyed it to the plaintiff, and this conveyance constitutes his only title. But fifteen years afterwards, Mr. Carpenter, having an execution against Mrs. Smith, caused it to bo levied upon the premises, and the defendant claims under the title thus acquired. That this levy was made upon a valid execution and in due form of law has not been disputed. The groat question between the [484]*484parties therefore is, Which of these is the superior title ? The plaintiff’s being earlier than the defendant’s must prevail, if acquired in good faith and for a valuable consideration. But the jury, by returning a verdict for thé defendant, have found that the plaintiff’s deed was fraudulent and void as to Carpenter: how then does he seek to overcome that obstacle ?
I. The plaintiff contends that although his deed may have been fraudulent and void against a creditor making a legal levy, still, if Eunice Smith continued to make her home on the premises at the time of the levy, claiming a homestead there, the levy was void because it was made in disregard of her homestead right. Kis position is, that Mrs. Smith, by continuing at the time of the levy to make her home on the premises, claiming a homestead there, relieved him from the ordinary consequences of attempting to hold property against creditors by virtue of a conveyance which is found to be fraudulent and void as to such creditors.
But we do not see how the plaintiff can be permitted to invoke to his aid the occupation of the premises by Mrs. Smith when the levy was made. Whether she was or was not affected by the levy, or whether, if actually in possession down to the time of the trespass, she could or could not have maintained this action against the defendant, are questions which we have no occasion to determine now. That she was in possession, and may have had a right as against the defendant to remain in possession, entitles the plaintiff to maintain no action against the defendant. A right to a homestead on the part of Mrs. Smith cannot bo set up in this way to settle the rights of other parlies. Mr. Carpenter may have supposed, because she liad conveyed the premises, that she had abandoned her homestead. That she did not request the officer to set it out, has a tendency to show that she had abandoned it. A creditor who thus levies in good faith upon an estate to which a homestead right appertains, no application being made to have it assigned, takes his title, it is true, subject to a liability to a subsequent assignment; but when the entire value has been applied on his execution, we see no occasion for holding that he shall not be entitled to whatever may remain after a homestead shall have been subsequently assigned, which must be the effect of holding this levy void.
Although Mrs. Smith may have been entitled to have the whole premises set off to her as her homestead, she could not assign this right to the plaintiff. A right to a homestead is not assignable. Gunnison v. Twitchel, 38 N. H. 62, 68; Bennett v. Cutler, 44 N. H. 71; Judge of Probate v. Simonds, 46 N. H. 363, 368. “ The right of homestead, before the same has been set out and assigned, is * * only an inchoate right, personal to the parties in whom it exists.” Fowler, J., in Foss v. Strachn, 42 N. H. 42. If Mrs. Smith had transferred her occupation and right of possession to a tenant, the exemption might cease. Doe, J., in Austin v. Stanley, 46 N. H. 62. That she was or had been the owner of the property in controversy, instead of simply having a homestead right in it, cannot effect the question in this view.
[485]*485If Mrs. Smith liad a homestead right in 1870 at the time of the levy, it was by virtue of the act of 1868, ch. 1, sec. 83, which gives such right not exceeding §500 in value to “the wife, widow, and children of every person who is owner of a homestead, or of any interest therein, occupied by himself or herself, and his or her family, ® * for and
during the life of such wife or widow, and the minority of such children.” If she had a homestead right in 1855, at the date of the deed, it was by virtue of the act of 1851, ch. 1089, see. 1, which gave such right not exceeding §500 in value to “ the head of each family.” Whether she had a minor child in 1870, or was the head of a family in 1855, does not appear. But that she had at the time of the levy a homestead right in the premises in controversy, unless she had lost it by abandonment, has not been controverted by the defendant, nor has any objection been raised against the plaintiff’s deed, because it was not made with the approval of the judge of probate, as was required if she had minor children. Act of 1868, ch. 1, sec. 35.
The course of proceedings for setting off a homestead by “ the officer to whom any writ of execution against the husband is delivered, to be levied on his real estate,” is pointed out in the Gen. Stats., ch. 124, sec. 5. We find no statutory provision, in force since the enactment of the General Statutes, which in terms provides for setting off a homestead when the execution debtor is nota “husband;” * but the defendant has interposed no objection on this account. If Mrs. Smith, being entitled to a homestead, had applied to the officer making the levy to set it out to her, it would have been his duty to do so; and if he had disregarded her application, the levy would have been void. Fogg v. Fogg, 40 N. H. 282; Tucker v. Kenniston, 47 N. H. 268.
But no application having been made by her to the officer for an assignment of a homestead, she waived her right to an assignment under the statute, and the creditor under such circumstances was at liberty to disregard her homestead right—Foster, J., in Barney v. Leeds, 51 N. H. 253, 270; but her light, if any, was not lost by the neglect, but may yet be secured to her by resort to other forms of proceeding. Fletcher v. State Capital Bank, 37 N. H. 369, 395; Fogg v. Fogg, 40 N. H. 282, 286; Barney v. Leeds, 51 N. H. 253, 269, 271, 272, 279; Tidd v. Quinn, 52 N. H. 344.
Although the case states that the whole value of the premises in controversy is less than §500, “ the only way to settle that fact is upon such application to have a homestead assigned in some of the ways provided by law, for that is the only appraisal recognized by the statute.” Sargent, C. J., in Tidd v. Quinn, 52 N. H. 345. If, however, as seems to be a conceded fact, the value of the entire premises was and is clearly less than $500, the defendant may, upon a proper application by Mrs. Smith for the assignment of a homestead, unless she has already abandoned her homestead right, be divested of all right [486]*486in tlie property during the time she may see fit to occupy it as a homestead.
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Hibbard, J.
It may be assumed that the plaintiff, at the time the alleged trespass wTas committed, was in possession of the premises in controversy. This is claimed by him, and is not denied by the defendant. That this is enough to entitle the plaintiff to maintain trespass against a mere wrong-doer is very true, but the decision of this case cannot turn on so narrow a view.
Both parties claim to own the premises, and the evidence of their respective titles is before us. Both claim under Eunice Smith; and it is conceded that on May 1, 1855, she owned the property, and that it was her homestead place, and was for that reason exempt from attachment or levy. On that day she conveyed it to the plaintiff, and this conveyance constitutes his only title. But fifteen years afterwards, Mr. Carpenter, having an execution against Mrs. Smith, caused it to bo levied upon the premises, and the defendant claims under the title thus acquired. That this levy was made upon a valid execution and in due form of law has not been disputed. The groat question between the [484]*484parties therefore is, Which of these is the superior title ? The plaintiff’s being earlier than the defendant’s must prevail, if acquired in good faith and for a valuable consideration. But the jury, by returning a verdict for thé defendant, have found that the plaintiff’s deed was fraudulent and void as to Carpenter: how then does he seek to overcome that obstacle ?
I. The plaintiff contends that although his deed may have been fraudulent and void against a creditor making a legal levy, still, if Eunice Smith continued to make her home on the premises at the time of the levy, claiming a homestead there, the levy was void because it was made in disregard of her homestead right. Kis position is, that Mrs. Smith, by continuing at the time of the levy to make her home on the premises, claiming a homestead there, relieved him from the ordinary consequences of attempting to hold property against creditors by virtue of a conveyance which is found to be fraudulent and void as to such creditors.
But we do not see how the plaintiff can be permitted to invoke to his aid the occupation of the premises by Mrs. Smith when the levy was made. Whether she was or was not affected by the levy, or whether, if actually in possession down to the time of the trespass, she could or could not have maintained this action against the defendant, are questions which we have no occasion to determine now. That she was in possession, and may have had a right as against the defendant to remain in possession, entitles the plaintiff to maintain no action against the defendant. A right to a homestead on the part of Mrs. Smith cannot bo set up in this way to settle the rights of other parlies. Mr. Carpenter may have supposed, because she liad conveyed the premises, that she had abandoned her homestead. That she did not request the officer to set it out, has a tendency to show that she had abandoned it. A creditor who thus levies in good faith upon an estate to which a homestead right appertains, no application being made to have it assigned, takes his title, it is true, subject to a liability to a subsequent assignment; but when the entire value has been applied on his execution, we see no occasion for holding that he shall not be entitled to whatever may remain after a homestead shall have been subsequently assigned, which must be the effect of holding this levy void.
Although Mrs. Smith may have been entitled to have the whole premises set off to her as her homestead, she could not assign this right to the plaintiff. A right to a homestead is not assignable. Gunnison v. Twitchel, 38 N. H. 62, 68; Bennett v. Cutler, 44 N. H. 71; Judge of Probate v. Simonds, 46 N. H. 363, 368. “ The right of homestead, before the same has been set out and assigned, is * * only an inchoate right, personal to the parties in whom it exists.” Fowler, J., in Foss v. Strachn, 42 N. H. 42. If Mrs. Smith had transferred her occupation and right of possession to a tenant, the exemption might cease. Doe, J., in Austin v. Stanley, 46 N. H. 62. That she was or had been the owner of the property in controversy, instead of simply having a homestead right in it, cannot effect the question in this view.
[485]*485If Mrs. Smith liad a homestead right in 1870 at the time of the levy, it was by virtue of the act of 1868, ch. 1, sec. 83, which gives such right not exceeding §500 in value to “the wife, widow, and children of every person who is owner of a homestead, or of any interest therein, occupied by himself or herself, and his or her family, ® * for and
during the life of such wife or widow, and the minority of such children.” If she had a homestead right in 1855, at the date of the deed, it was by virtue of the act of 1851, ch. 1089, see. 1, which gave such right not exceeding §500 in value to “ the head of each family.” Whether she had a minor child in 1870, or was the head of a family in 1855, does not appear. But that she had at the time of the levy a homestead right in the premises in controversy, unless she had lost it by abandonment, has not been controverted by the defendant, nor has any objection been raised against the plaintiff’s deed, because it was not made with the approval of the judge of probate, as was required if she had minor children. Act of 1868, ch. 1, sec. 35.
The course of proceedings for setting off a homestead by “ the officer to whom any writ of execution against the husband is delivered, to be levied on his real estate,” is pointed out in the Gen. Stats., ch. 124, sec. 5. We find no statutory provision, in force since the enactment of the General Statutes, which in terms provides for setting off a homestead when the execution debtor is nota “husband;” * but the defendant has interposed no objection on this account. If Mrs. Smith, being entitled to a homestead, had applied to the officer making the levy to set it out to her, it would have been his duty to do so; and if he had disregarded her application, the levy would have been void. Fogg v. Fogg, 40 N. H. 282; Tucker v. Kenniston, 47 N. H. 268.
But no application having been made by her to the officer for an assignment of a homestead, she waived her right to an assignment under the statute, and the creditor under such circumstances was at liberty to disregard her homestead right—Foster, J., in Barney v. Leeds, 51 N. H. 253, 270; but her light, if any, was not lost by the neglect, but may yet be secured to her by resort to other forms of proceeding. Fletcher v. State Capital Bank, 37 N. H. 369, 395; Fogg v. Fogg, 40 N. H. 282, 286; Barney v. Leeds, 51 N. H. 253, 269, 271, 272, 279; Tidd v. Quinn, 52 N. H. 344.
Although the case states that the whole value of the premises in controversy is less than §500, “ the only way to settle that fact is upon such application to have a homestead assigned in some of the ways provided by law, for that is the only appraisal recognized by the statute.” Sargent, C. J., in Tidd v. Quinn, 52 N. H. 345. If, however, as seems to be a conceded fact, the value of the entire premises was and is clearly less than $500, the defendant may, upon a proper application by Mrs. Smith for the assignment of a homestead, unless she has already abandoned her homestead right, be divested of all right [486]*486in tlie property during the time she may see fit to occupy it as a homestead. Whether after the termination of a homestead right, not claimed at the time of a levy and subsequently set out upon petition, the levying creditor may, as suggested in Mr. Carpenter’s argument, hold the reversion in the part assigned as a homestead, which in this case it may be supposed would be the entire estate, contrary to what would have been the result if application had been made in the first instance to the officer to cause a homestead to be set out, is a question we have not considered.
It is very clear that the instruction requested by the plaintiff as to the effect, if his deed was fraudulent and void as-to creditors, of the continued occupation by Mrs. Smith of the premises as her homestead, was rightly denied, and that the instruction actually given was correct.
II. But the plaintiff’s counsel has strenuously contended that he was entitled to a verdict, upon the ground that the conveyance to him could not be fraudulent. His position is, that as the creditors of Eunice Smith could not lawfully attach or levy upon her homestead, it being of less value than $500, “ it follows that by no earthly possibility could such conveyance be a fraud on her creditors.” As there was no ground for a verdict in favor of the defendant, except because the plaintiff’s deed was fraudulent as to creditors, it appears to be true, if the deed could not possibly be fraudulent as to creditors, that the plaintiff was entitled to a verdict. The case does not show that this position was taken at the trial, but we have considered it.
Is it, then, impossible for a conveyance of property which is exempt from attachment or levy to be fraudulent as to creditors ? Authorities upon both sides of this perplexing question are cited in 1 Story’s Eq. Jur., secs. 367, 868. We have also found additional authorities on both sides of the question, besides those cited by counsel in the present case. We refer to Woodworth v. Paige, 5 Ohio St. 70; Wood v. Chambers, 20 Tex. 247; Dreutzer v. Bell, 11 Wis. 114; Lishy v. Perry, 6 Bush. (Ky.) 515; Crummen v. Bennet, 68 N. C. 494; Piper v. Johnston, 12 Minn. 60, 69; Beals v. Clark, 13 Gray 18; Stevenson v. White, 5 Allen 148; Rayner v. Whitcher, 6 Allen 292; Mannan v. Merritt, 11 Allen 582. It may be remarked that the opinions in those cases generally contain but little reasoning, and do not indicate that the question was much considered.
The argument of Mr. Bingham upon this point is certainly plausible, but after much hesitation we have concluded that it is untenable, and we are of the opinion that it is not impossible for such a conveyance to be fraudulent as to creditors. That property alleged to have been conveyed in fraud of creditors was exempt from attachment or levy, is a circumstance to be weighed by the jury in determining upon the validity of the conveyance, but it is not conclusive.
The exemption of a homestead from attachment or levy is a personal privilege -which the law gives to the owner, in order that he or his family may occupy it; not that, if they cease to have occasion to occupy it, he may place it beyond the reach of his creditors.. Mrs. Smith had [487]*487a right to occupy the homestead in controversy so long as she lived. She had a right to sell it, and purchase another homestead with the avails, and occupy that. A bona fide exchange of this homestead for another probably would have been sustained against an existing attachment had there been one — Bellows, J., in Tucker v. Kenniston, 47 N. H. 267, Black v. Epperson, 40 Tex. 162; but she could not lawfully give it away, as against the rights of her creditors. If she had been about to take up her permanent abode in another place, there can be no doubt that her homestead, or the avails of it, unless again invested in exempted property, would' have justly belonged to them. How, then, could she give it away, if unable longer to occupy it, without committing a fraud upon them ? It was hers to occupy, not to give away. The law does not exempt the avails of it when sold. On the contrary, if the plaintiff had made an honest purchase, and given his note for the full consideration, the whole might have been held by trustee process. Manchester v. Burns, 45 N. H. 482, 488; Wooster v. Page, 54 N. H. 125, 127.
«: If Mrs. Smith, after her conveyance to the plaintiff, had purchased another homestead, and removed to it from the one in controversy, clearly the new homestead would have been exempt from attachment or levy. And can it be pretended that the old one would have remained exempt? If it would, then nothing can prevent an insolvent debtor from “ salting down ” as many successive homesteads by giving them to his friends to hold in trust for him, as the funds of his creditors in his hands will enable him from time to time to buy. If it would not, it must be because the conveyance of it was fraudulent and void as to creditors from the beginning. It is absurd to say that a conveyance, which is honest and valid when executed and for an indefinite time afterwards, can be made fraudulent and void by the subsequent acts of the grantor, over which the grantee has no control.
It may be that Mrs. Smith, after making an absolute conveyance, might retain her homestead right against everybody but her grantee— Crummen v. Bennet, 68 N. C. 494, Cox v. Wilder, 2 Dill. C. C. 45, Vogler v. Montgomery, 54 Mo. 577 — as she might, after making a mortgage of it, against everybody but the mortgagee. It may be that the rights of creditors as against her might be controlled by her continued occupancy. To-day, while she occupies it, they might not be able to levy on the property; to-morrow, after she has abandoned it, they might. A levy made while she was in the occupation, if she requested the officer to cause a homestead to be set out to her, might be void, and therefore incapable of being made good by her subsequent abandonment ; if made after she had ceased to occupy7, it might be valid. But we cannot say that the title of the plaintiff, if it was good at its inception, could be made bad by her subsequent purchase of and removal to a new homestead. That would be the same thing as to say that his title was good so long as he took nothing by his deed, but bad the moment 1ns grantor permitted him to enter into possession.
Suppose this property to have.been worth $1,000, and to have been [488]*488conveyed without consideration in trust for the grantor: whether Mrs. Smith, though she had conveyed it by an absolute deed, might, so long as the grantee permitted her to remain in possession, have a homestead right, of which no levying creditor could divest her, we need not now decide, but that the levying creditor would hold all but the homestead right against the grantee, the grantor, and the whole wrorld, no one will deny ; and so far as the grantee is concerned, it is not easy to tell what would prevent his holding that also. It seems that such a conveyance, being confessedly fraudulent in part, must be held to be fraudulent in tato; and if a grantee, without consideration of a homestead place’ worth $500 more than the amount exempted by law, can hold nothing against creditors, we look in vain for reasons why, if the entire value of the place was $500 or less, he should hold the whole.
Under the liberal statutes now in force, an insolvent debtor may easily have $1000 or more invested in beasts of the plow, a cow, a hog, and a pig, tools of his occupation, a pew in a-meeting-house, a sewing machine, a library, furniture, and other articles, which are exempted from attachment or levy. But this is that he may be permitted to use them. It is a privilege personal to him, and which may be waived by him. If, no longer needing them, ho gives them away, how can the gift bo sustained against creditors ? Why should they not have the property as soon as he ceases to need it for the purposes for which the law protected it ? That he commits a fraud upon them if he gives it away, seems too plain to require argument. If, instead of giving it away because he no longer needs it, he gives it away and purchases other similar property to supply its place, the absurdity of holding the gift to be valid, though really no greater, becomes more obvious.
Suppose, after giving it away, he dies: suppose the gift is made in view of approaching death : shall the donee hold the property, or shall the administrator of the donor hold it for the benefit of his creditors ? Manifestly there can be but one answer to this inquiry. If the estate is insolvent, it must go to the administrator. And, surely, it will not be contended that the donee may hold it absolutely against creditors during the lifetime of the donor, but must lose it the moment he is dead. The absolute owner of property cannot be divested of his title by the death of a former owner. If the donee in such a case owns the property as against creditors while the donor lives, he certainly must own it as against the rights of creditors after he dies. And it is equally certain that the creditors of the donor might be defrauded by his giving it away in his lifetime if the donee could hold it after his decease.
Although the owner of a homestead place worth no more than $500, if he make a seasonable application to have a homestead set off to him whenever a levy is about to be made, may hold it, including the reversion, beyond the reach of his creditors during his life, it is plain that he might have a fraudulent intent to give it to a friend, to the exclusion of creditors, after his decease, and might actually defraud them if, though unable to give any title by making a will, he could give a good title by making an absolute deed.
[489]*489In the case before us it would appear that Mrs. Smith, after making an absolute conveyance to the plaintiff, was permitted for fifteen years to occupy the premises as her homestead, and that the plaintiff never entered into possession until after one of her creditors had levied upon the property. If it was impossible for this conveyance tobe fraudulent as to creditors, then, certainly, every insolvent owner of a homestead, in view of approaching death, or in view of death at some indefinite future time, though unable to devise it, can convey it without consideration, to be held in trust for his own use during his life, and at his death to go to the grantee, whether he dies within a day, or a year, or a quarter of a century.
The ingenious suggestion of the plaintiff’s counsel, that, although perpetual motion in mechanics yet remains undiscovered, an instance of perpetual motion in law will occur if the verdict in this case is sustained, upon the ground that if the defendant by virtue of Carpenter’s levy can turn the plaintiff out of possession, Mrs. Smith by virtue of her homestead right can then turn the defendant out, and the plaintiff by virtue of his deed from Mrs. Smith can then turn her out, and this may be repeated ad infinitum, presents a somewhat troublesome illustration. But whatever effect an absolute conveyance by Mrs. Smith, without any change of occupancy, may have had upon her homestead right as against creditors, it seems that, if the plaintiff has turned her out of possession by virtue of an absolute conveyance from her, she must be deemed to have abandoned the occupation of the premises as her homestead, and will not be entitled to turn the defendant out of possession after he has succeeded in turning the plaintiff out. We intend, however, to leave the question of abandonment, as it may hereafter arise between the defendant and Mrs. Smith, to be decided upon all the facts as they may then appear.
Numerous additional illustrations in support of the conclusion we have reached may be found in the argument of Mr. Carpenter upon this branch of the case. Several positions taken by him remain unanswered, and we have failed to discover how they can be answered. We deem it sufficient to refer to them, instead of occupying space by incorporating them in this opinion.
Judgment on the verdict.