The opinion of the court was delivered by
Wheeler, J.
I. From the pleadings and evidence in this case, it is clear that at the time when Ililaud Hall, the intestate, executed the mortgage to the orator, he resided at the place called the Chase place, away from the premises in controversy, and not on those premises, although he was then iu possession of them, preparing them for a home, and afterwards did actually reside upon them. The most important question in the case is, whether under these circumstances, the intestate could at that time mortgage the promises, without his wife joining with him, so that the mortgage would hold the premises against the homestead right of his wife and children after his decease, or not. The statutes on this subject have been materially altered since that time, and the question is to be decided upon the statutes as they then stood: The statutes then in force provided that “ the homestead of every housekeeper or head of a family residing in this state, to the value of five hundred dollars — such homestead consisting of a dwelling [298]*298house out buildings and lands appurtenant, occupied by such person as a homestead ” — should be exempt from attachment and execution on certain debts, and should not be alienated or mortgaged by the owner, if a married man, except by the joint deed of such husband and wife. This statute required more than that the premises should be occupied by the housekeeper or head of a family ; it required that they should be occupied by him as a homestead. Occupation of a dwelling house as a homestead, could not well be less than residence in the house by the occupant, and the fair and plain import of the language of the statute would seem clearly to require actual residence upon the premises, to make them a homestead. This question is different from some of those that have arisen concerning the liability of homesteads to attachment. The homestead statutes have always provided that homesteads should not be liable to attachment for debts created after the homesteads were acquired, and that the time of the filing of the deeds of homesteads for record, should be deemed to be the time when they were acquired for that purpose. This provision has always been in a section by itself, and has had no reference to the right to alienate or mortgage by the owner. The question of liability to attachment has turned upon the question whether the debt was created before the filing of the deed or not, without reference to whether the premises were occupied as a. homestead or not at the time of contracting the debt, if they were so occupied before attachment or levy. West River Bank v. Gale, 42 Vt. 27 ; Lamb v. Mason, 45 Vt. 500. This question as to the power of the husband to mortgage, is to be determined, therefore, without reference to whether the debt secured by the mortgage was one on which the premises could be held by attachment after they were in fact occupied by him as a residence. The provisions of the statute as to what should pass as a homestead to widows and children, are the same as those as to what should not be alienated or mortgaged without the wife’s joining; and what, would be a homestead in one of these cases, would be in the other. In True et als. v. Est. of Morrill, 28 Vt 672, the question was as to what would pass to the widow of Morrill. He was boarding near by a place he owned, on which was a barn and an old [299]*299house occupied by a tenant, and he had contemplated building a house there for his own occupation, and made some preparation therefor by procuring building materials, and attempted to negotiate for the building of it. The court held that he had not any homestead there that would pass to the widow. That question arose under this same statute. Judge Bennett, in delivering the opinion of the court, said : “ Where the statute speaks of a housekeeper or head of a family occupying a place as a homestead, it no doubt refers to a personal occupation and not by a tenant.” The question in Davis & wife v. Andrews, 30 Vt. 678, was as to the power of the husband to alienate alone premises whore he had had homestead, but on which he had ceased to reside. It was held that ho could so alienate, and Poland, J., in the opinion said : “It is not enough that the housekeeper may still have the legal possession of the old or former homestead so that he could maintain trespass for an injury to it; the question is, does he occupy it for a homestead; does he live and have his home there ?” In McClary v. Bixby, 36 Vt. 254, the question was as to what would pass as a homestead by descent under this statute, and in the course of the opinion Judge Kellogg said : “ The essential condition to the existence of the homestead right, is the actual personal occupancy by the husband or head of the family of a dwelling house and lands appurtenant as a homestead, or family home.” In West River Bank v. Gale, before cited, one question considered was as to the existence of a homestead right in. the debtor at the time of levy. He had left his homestead and rented part of it to a tenant, intending to return, and been prevented from returning by sickness of the tenant and lameness of himself. It was held he had a homestead right under the provisions of the general statutes, but from the opinion by Pierpoint, Ch. J., it appears to have been considered that he would not have had under this statute. Courts in other states appear to have held that homestead rights would not exist under circumstances like those in this case, and under statutes similar to this. Lee v. Miller, 11 Allen, 37 ; 1 Am. Law Reg N. S. 650-1, and numerous cases cited there. It has been suggested in this case, that if the homestead right would not attach under circumstances like these, a per-[300]*300sou seeking to obtain a homestead would be embarrassed by the liability of promises purchased for that purpose to attachment before they could be occupied by residence. But the homestead has never been made exonqjt from liability for debts that wore created before or at the timo it was acquired as before mentioned, and therefore its liability to .such debts would not be affected at all by any consideration as to when, or under what circumstances after the filing of the deed for record, premises would become a homestead for other purposes. A definite rule was provided for ascertaining what debts a homestead would be liable to, and one that the facts to apply it to would be open to all persons, and that could be applied readily and easily ; and it would seem to have been the design of this statute to make the power of the husband to alienate or mortgage without the wife’s joining, readily ascertainable by finding whether the premises were occupied by him as a residence, without leaving it to depend upon his intentions, which might be known only to himself, and about which his expressions might not bind nor estop other persons with whom questions concerning his power might arise.
In view of the plain words of this statute and the exposition of them in the case's mentioned, and of these other considerations, it seems clear that under this statute nothing short of actual residence upon premises intended for a homestead, would give, the character of a homestead to them so as to cut off the right of the owner to alienate or mortgage them. The orator’s mortgage is therefore considered valid against the homestead claim set up in the defence.
II. It is also clear that Erasmus D.
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The opinion of the court was delivered by
Wheeler, J.
I. From the pleadings and evidence in this case, it is clear that at the time when Ililaud Hall, the intestate, executed the mortgage to the orator, he resided at the place called the Chase place, away from the premises in controversy, and not on those premises, although he was then iu possession of them, preparing them for a home, and afterwards did actually reside upon them. The most important question in the case is, whether under these circumstances, the intestate could at that time mortgage the promises, without his wife joining with him, so that the mortgage would hold the premises against the homestead right of his wife and children after his decease, or not. The statutes on this subject have been materially altered since that time, and the question is to be decided upon the statutes as they then stood: The statutes then in force provided that “ the homestead of every housekeeper or head of a family residing in this state, to the value of five hundred dollars — such homestead consisting of a dwelling [298]*298house out buildings and lands appurtenant, occupied by such person as a homestead ” — should be exempt from attachment and execution on certain debts, and should not be alienated or mortgaged by the owner, if a married man, except by the joint deed of such husband and wife. This statute required more than that the premises should be occupied by the housekeeper or head of a family ; it required that they should be occupied by him as a homestead. Occupation of a dwelling house as a homestead, could not well be less than residence in the house by the occupant, and the fair and plain import of the language of the statute would seem clearly to require actual residence upon the premises, to make them a homestead. This question is different from some of those that have arisen concerning the liability of homesteads to attachment. The homestead statutes have always provided that homesteads should not be liable to attachment for debts created after the homesteads were acquired, and that the time of the filing of the deeds of homesteads for record, should be deemed to be the time when they were acquired for that purpose. This provision has always been in a section by itself, and has had no reference to the right to alienate or mortgage by the owner. The question of liability to attachment has turned upon the question whether the debt was created before the filing of the deed or not, without reference to whether the premises were occupied as a. homestead or not at the time of contracting the debt, if they were so occupied before attachment or levy. West River Bank v. Gale, 42 Vt. 27 ; Lamb v. Mason, 45 Vt. 500. This question as to the power of the husband to mortgage, is to be determined, therefore, without reference to whether the debt secured by the mortgage was one on which the premises could be held by attachment after they were in fact occupied by him as a residence. The provisions of the statute as to what should pass as a homestead to widows and children, are the same as those as to what should not be alienated or mortgaged without the wife’s joining; and what, would be a homestead in one of these cases, would be in the other. In True et als. v. Est. of Morrill, 28 Vt 672, the question was as to what would pass to the widow of Morrill. He was boarding near by a place he owned, on which was a barn and an old [299]*299house occupied by a tenant, and he had contemplated building a house there for his own occupation, and made some preparation therefor by procuring building materials, and attempted to negotiate for the building of it. The court held that he had not any homestead there that would pass to the widow. That question arose under this same statute. Judge Bennett, in delivering the opinion of the court, said : “ Where the statute speaks of a housekeeper or head of a family occupying a place as a homestead, it no doubt refers to a personal occupation and not by a tenant.” The question in Davis & wife v. Andrews, 30 Vt. 678, was as to the power of the husband to alienate alone premises whore he had had homestead, but on which he had ceased to reside. It was held that ho could so alienate, and Poland, J., in the opinion said : “It is not enough that the housekeeper may still have the legal possession of the old or former homestead so that he could maintain trespass for an injury to it; the question is, does he occupy it for a homestead; does he live and have his home there ?” In McClary v. Bixby, 36 Vt. 254, the question was as to what would pass as a homestead by descent under this statute, and in the course of the opinion Judge Kellogg said : “ The essential condition to the existence of the homestead right, is the actual personal occupancy by the husband or head of the family of a dwelling house and lands appurtenant as a homestead, or family home.” In West River Bank v. Gale, before cited, one question considered was as to the existence of a homestead right in. the debtor at the time of levy. He had left his homestead and rented part of it to a tenant, intending to return, and been prevented from returning by sickness of the tenant and lameness of himself. It was held he had a homestead right under the provisions of the general statutes, but from the opinion by Pierpoint, Ch. J., it appears to have been considered that he would not have had under this statute. Courts in other states appear to have held that homestead rights would not exist under circumstances like those in this case, and under statutes similar to this. Lee v. Miller, 11 Allen, 37 ; 1 Am. Law Reg N. S. 650-1, and numerous cases cited there. It has been suggested in this case, that if the homestead right would not attach under circumstances like these, a per-[300]*300sou seeking to obtain a homestead would be embarrassed by the liability of promises purchased for that purpose to attachment before they could be occupied by residence. But the homestead has never been made exonqjt from liability for debts that wore created before or at the timo it was acquired as before mentioned, and therefore its liability to .such debts would not be affected at all by any consideration as to when, or under what circumstances after the filing of the deed for record, premises would become a homestead for other purposes. A definite rule was provided for ascertaining what debts a homestead would be liable to, and one that the facts to apply it to would be open to all persons, and that could be applied readily and easily ; and it would seem to have been the design of this statute to make the power of the husband to alienate or mortgage without the wife’s joining, readily ascertainable by finding whether the premises were occupied by him as a residence, without leaving it to depend upon his intentions, which might be known only to himself, and about which his expressions might not bind nor estop other persons with whom questions concerning his power might arise.
In view of the plain words of this statute and the exposition of them in the case's mentioned, and of these other considerations, it seems clear that under this statute nothing short of actual residence upon premises intended for a homestead, would give, the character of a homestead to them so as to cut off the right of the owner to alienate or mortgage them. The orator’s mortgage is therefore considered valid against the homestead claim set up in the defence.
II. It is also clear that Erasmus D. Hall discharged the Page-Morrison mortgage for the benefit of his mother, Sophia Hall, without payment of it by her, to help her estate in the promises to that extent. .She had an estate in the premises at that time, which had passed to her as a homestead right at the decease of her husband. Her estate was subject to the orator’s mortgage, but notwithstanding that, she had the equity of redemption of both- mortgages vested in her and her minor children. If she had paid off this Morrison mortgage to her son while so situated, aud procured him to discharge it, as that was prior to the [301]*301orator’s mortgage, slie could have stood upon it agaiust his mortgage to the same extent that the original mortgagee could. Walker v. King, at als. 44 Vt. 601. Her sou waived payment of it, and discharged it for her benefit, not-for the benefit of the orator ; and whether he should insist upon payment or waive it,, would be nothing to the orator, for it would be no worse for him to redeem that mortgage in the hands of one than it would be in tho hands of the other. The orator therefore is not entitled to a decree of foreclosure of his mortgage, until lie redeems the Morrison mortgage by paving the sum duo on it to the defendant Sophia Hail.
The decree of the court of chancery is reversed, and the cause is remanded to that court, with directions to enter a decree of foreclosure of the orator’s mortgage against all the defendants except Sophia Hall, and agaiust her, upon Ms redemption of the Morrisom mortgage in her hands, or tho deposit of the amount due on it with the clerk for her benefit.