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Austin v. Stanley

George W. Austin v. Clinton W. Stanley, Adm'r.

Austin v. Stanley, 46 N.H. 51 (1865)
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Court
Supreme Court of New Hampshire · State Highest Courts
Decided
June 15, 1865
Judges
Doe
Citations
46 N.H. 51
Cited by 9
Headnotes
Under tlie homestead act, a debtor cannot hold a place which was not his home at the time of the levy of his creditor’s execution.
Summary
Writ oe entry. Submitted upon an agreed statement of facts. The demanded premises are in Weare, in this county, and consist of a house and lot of land of the value of five hundred dollars. The defendant claims title by virtue of the levy of an execution in his favor as administrator against the plaintiff on a claim arising since July 4, 1851, and the plaintiff claims under the " act to exempt the homestead of families from attachment and levy on execution passed July 4, 1851.” At the time of the attachment of the premises by the defendant, neither the plaintiff nor his family were in the occupation of the same, nor have they been since, though, at a period some time prior to the attachment, the plaintiff had occupied them. At the time of the levy the plaintiff demanded of the officer a homestead, which he declined tó set off. At the time of the attachment and levy the plaintiff had no other real estate, nor any right, title or interest in any; but he was theniwith his family living in Winchester, in the county of Cheshire ; but there was a family living in the house on said premises who he claimed were his tenants.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Doe

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Doe, J.

The Homestead Act, ch. 1089, Laws 1851, provides that the family homestead of the head of each family shall be exempt. "Homestead” means home place, or place of the home, and the question whether the premises were exempt from the levy of the defendant’s execution, is to be determined by the rules applicable to residence or domicile — rules of familiar and frequent application in questions of right to vote and liability to be taxed. The statute was specially intended to secure to debtors and their families, the shelter of the homestead roof; not to exempt mere investments in real estate, or the rents and profits derived therefrom.

. Temporary absence from the premises, with intent to retain the home there and to return to it, would not be an .abandonment of the home or a relinquishment of the homestead right. Davis v. Andrews, 30 Vt. 678 ; Taylor v. Boulware, 17 Texas 74 ; Benedict v. Bunnell, 7 Cal. 245 ; Moss v. Warner, 10 Cal. 296 . It would- probably be a reasonable conclusion from the agreed facts, that the premises were not exempt; but the plaintiff’s intention is not stated, and it would seem that it ought to appear in this case. During the temporary absence, his possession might be retained by agents or servants; but if he transferred his occupation and right of possession to a tenant, the exemption might cease.

Dase discharged.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 9 cases

View all citing references →
1926: 11986: 12001: 12002: 12005: 12006: 12018: 12019: 12020: 119262026peak 1926 · 1

Relies on it most ⓘ

  1. Stewart v. Bader907 A.2d 931 (N.H. 2006)
  2. In re Marsico2002 BNH 15 (Bankr. D.N.H. 2002)
  3. In re Visconti426 B.R. 422 (Bankr. D.N.H. 2001)
  4. In re Eckols63 B.R. 523 (Bankr. D.N.H. 1986)
  5. Grotberg v. First Nat. Bank.210 N.W. 21 (N.D. 1926)
  6. Deutsche Bank Nat'l Trust Co. v. Pike916 F.3d 60 (1st Cir. 2019)

Most recent

  1. Ellicott v. American Capital Energy Inc.No. 1:14-cv-12152 (D. Mass. Feb. 6, 2020)
  2. Deutsche Bank Nat'l Trust Co. v. Pike916 F.3d 60 (1st Cir. 2019)
  3. Charles A. Burrows, Jr.No. 17-11008 (Bankr. D.N.H. Dec. 12, 2018)
  4. Stewart v. Bader907 A.2d 931 (N.H. 2006)
  5. In re Myers323 B.R. 11 (Bankr. D.N.H. 2005)
  6. In re Marsico2002 BNH 15 (Bankr. D.N.H. 2002)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 4

DepthCaseCited by
Taylor v. Boulware, 17 Tex. 74 (1856) 28
Moss v. Warner, 10 Cal. 296 (1858) 21
Davis v. Andrews, 30 Vt. 678 (1858) 19
Benedict v. Bunnell, 7 Cal. 245 (1857) 10

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