Burns v. Thayer

The demandant claims a homestead estate in the demanded premises. They were conveyed by Nathan Matthews to her husband September 15, 1854, and at the same time mortgaged back to secure a part of the purchase money. The mortgage was assigned to Potter, who took possession to foreclose the mortgage April 26,1855, and a certificate of his mtry was duly made and recorded. The homestead act of 1855 was passed April 27, and took effect thirty days afterwards. It gave no homestead right to Burns or the demandant as against the mortgage. On June 29,1855, in pursuance of an agreement between Potter and Burns, the mortgage was discharged, and a *428new mortgage was taken for the amount due. The release of the old mortgage and the making of the new one appear to be parts of one transaction only, and the seisin thereby acquired by Burns between the release and the new mortgage was but momentary. Such a seisin would not give his wife a right of dower. Holbrook v. Finney, 4 Mass. 566. Clark v. Munroe, 14 Mass. 351. It would not vest in Burns an attachable interest. Haynes v. Jones, 5 Met. 292. No circumstances are stated, such as existed in Webster v. Campbell, 1 Allen, 313, to raise a doubt whether the seisin was merely instantaneous. Such a seisin is not an occupation of the premises as a residence, and therefore it is not sufficient to create a homestead estate within the terms of St. 1855, c. 238. Indeed, the actual occupation of Burns was under the second mortgage; and his homestead estate must be regarded as subject to it.

Under a power of sale contained in the mortgage, Potter sold the premises to Dow by a deed which purports to convey all his title to the land, and the tenant is in possession under a conveyance from Dow. The tenant’s title constitutes a valid defence to this action, upon the principles stated above, and we have no occasion to consider the other questions that have been argued.

Judgment for the tenant affirmed,.