Opinion
Decided December, 1889.
The homestead right is extinguished by a conveyance of the premises and removal therefrom.
HOMESTEAD CLAIM. Facts found by the court. October 22, 1888, the plaintiff commenced the levy of an execution against the defendants upon a farm in Enfield, in which the defendants now claim a homestead. September 8, 1888, the defendants exchanged this Enfield farm with one Colby, for a small farm in Franklin, and gave him a warranty deed of it. The defendants claim that they continued to reside on the Enfield farm until October 25, 1888, three days after the commencement of the levy. Their demand for a homestead was made upon the officer November 28, 1888. At that time they were actually living upon, and had, a homestead in their Franklin farm.
I. S. Heath, for the plaintiff.
Leach Stevens, for the defendants.
The defendants' homestead right in the Enfield farm was extinguished by the conveyance of their interest in it and by their removal from it. G. L., c. 138, s. 1; Currier v. Woodward, 62 N.H. 63. Whether they had actually moved when the levy was commenced, and whether the value of the farm was more than $500 above the mortgage, is immaterial. The validity of their claim depends upon the existence of the homestead right at the time of the demand. As they had neither title nor possession when the demand was made, their application for a homestead was properly denied. Besides, the fact appears that the defendants were actually living upon, and had, a homestead in their farm in Franklin when they made the demand for a homestead in Enfield. The law exempts but one homestead at the same time. Horn v. Tufts, 39 N.H. 478.
Homestead denied in the Enfield farm.
BINGHAM, J., did not sit: the others concurred.