Dunham v. Dunham

128 Mass. 34, 1879 Mass. LEXIS 165

• Court: Massachusetts Supreme Judicial Court
• Decided: November 6, 1879
• Status: Published

Opinion

Soule, J.

The deed to the demandant contains a statement that the premises are to be held “ by said Dunham ” as a homestead. This must be interpreted as meaning that they are to be so held by the grantee. The habendum is to her and her heirs and assigns to their own use. A declaration that the premises were to be held as a homestead by a third person would make the deed inconsistent with itself.

Whether such a deed would give to the husband a homestead right, while the marriage relation continued between him and the grantee, it is not necessary for us to consider, because, if it did, such right was destroyed by the divorce in favor of the demandant. It would be a somewhat anomalous state of things which permitted a man to maintain such a right in the lands of the woman who had obtained a decree of divorce which released her from all relations and duties to him, and rendered it impossible that they should be members of the same family. And it is provided by the Gen. Sts. e. 107, § 40, that, on the dissolution of a marriage for any cause except adultery on the part of the wife, the wife shall be entitled to the immediate possession of all her real estate, in like manner as if her husband were dead. The only modification of this provision is in the St. of 1873, c. 371, § 7, which provides that, when a divorce is decreed for any cause, the court granting it may decree alimony to the wife, or any part of her estate to her husband in the nature of alimony. As no right or estate in the demanded premises was decreed to the tenant, in the divorce proceedings, his possession of the demandant’s real estate, after the divorce, was without right, and she is entitled to judgment. Exceptions overruled.