Locke v. Rowell

At common law, a lease for years by a tenant for life was never regarded as creating a forfeiture, as the reversioner was not aflected by such contract. It is the unequivocal act of abandonment by Mm or her, holding the homestead right, which is to deprive them of their estate, such as is evinced by a sale and absolute conveyance, or by a change of domicil, or a substitution of another estate elsewhere. Verbal testimony is admissible to show the limits and extent of a home farm, or homestead ; also often admissible to explain a change of domicil. The intention to change it is a matter of fact to be found by the jury.

Trespass, quare clausum fregit, and carrying away plaintiff’s grass. Plea, general issue. The action was tried by the court and the following facts found: The plaintiff is the widow of Daniel Locke, late of Warner, deceased, who owned the premises in question at the time of his death, in 1858. The plaintiff has one daughter living, now about twelve years of age. ' The locus in quo was assigned to the plaintiff as her homestead out of the estate of her late husband, January 10,1859, and contains about twenty-five acres of land, on which was a house and shed, and old barn, which has since blown down. The plaintiff lived upon these premises a large portion of the time until April, 1861, when she rented them to one Day Emerson for one year; and again, in 1862, she rented the premises to one Andrew J. Davis for that year. These contracts were in writing, and were similar for both years. The one to Davis was as follows : "Warner, April 19, 1862. I, the undersigned, Sarah A. Locke, do hereby shew that I have rented my farm, situated in Warner, near Mr. Levi Elanders, to Andrew J. Davis, for the sum of twenty-eight ($28) dollars, and that he shall have the income of said farm for the year of 1862. I hereby shew that Andrew J. Davis has paid me one half down, and the remainder to be paid in the fall. Whereof I have hereunto set my hand and seal. Sarah A. Locke, [seal.] Witness, Sally Sargent.” The lessees entered under their leases and occupied the premises, except the house, in 1861, and part of 1862. Emerson testified that he understood he hired the house in 1861, and had a right to occupy it, but having no occasion to occupy it, he did not, and never had the keys. The plaintiff testified, against the defendant’s objection, that she did not understand she leased the house either year, and such is found to be the fact. Neither of the lessees ever occupied the house at all, but the plaintiff has always kept her furniture in it the same as before the leases, and has always kept the key of the house and exercised the sole control of it. During the years 1861 and 1862 she was absent most of the time, coming back about three times each year, opening the house and airing it, building fires in it, and taking care of her furniture, but stopping only a few days at a time, not exceeding a week in any one instance. During these years she was visiting among her friends and relatives a part of the time, and a portion she was at work at Manchester and other places. In the spring of 1863 she returned and resided in the house on the premises, where she has continued most of the time since. In the summer of 1863 she and the defendant both attempted to cut the grass on the premises, but the defendant succeeded in getting the larger part of it, and this suit is brought for that entry and oarrying away of the plaintiff’s grass. The income of this land is not sufficient to support the plaintiff. She has never intended to abandon her homestead or relinquish her right there. The defendant’s title is as follows : John Currier, administrator of Daniel Locke (plaintiff’s late husband,) in consideration of $27.50, conveyed to Eranklin Siroonds, by deed dated April 30, 1859, in pursuance of license from the probate court, "the reversion of the homestead” in the locus in quo; and said Simonds conveyed to the defendant, by deed dated April 7, 1862, in consideration of $125.00, the same reversion, The defendant claims that the plaintiff forfeited her homestead by leasing the premises and ceasing to occupy the same in 1861, and again in 1862, and that her right to the same was thereby forfeited and extinguished when he cut the grass in question in 1863. Upon the foregoing facts the court ruled, pro forma, that the plaintiff was entitled to recover; to which ruling the defendant excepted. And it was agreed that judgment be rendered for the plaintiff for ten dollars damages and full costs, or for the defendant for his costs, according to the opinion of the court upon the questions of law arising in the case. It is ordered that said questions of law be reserved and assigned to the law term. The court erred in ruling that the plaintiff was entitled to recover upon the facts found, and should have ordered judgment for the defendant, for these reasons : 1. The plaintiff’s title to the locus in quo was an estate for life, dependent on the condition subsequent that she should continue personally to occupy and improve the same. When in April, 1861, she leased the premises to Emerson for one year, and herself ceased to occupy them, and Emerson entered under his lease and occupied them, her estate was forfeited to the owner of the reversion, and the deed of Simonds to the defendant, subsequently made, gave to the defendant a fee in the premises. By the first section of the homestead act the plaintiff’s tenure is limited to the period of her actual occupancy. Compiled Laws, 474. In Norris v. Moulton, 34 N. II. 396, the estate of the widow is expressly said to be limited to her actual occupancy. So in Atkinson v. Atkinson, 37 N. H. 436, the plaintiff’s interest is defined to be "a conditional estate for life ; its continuance depending upon her continuing to occupy it as a homestead.” Such is also the doctrine of Gunnison v. Twitchel, 38 N. H. 62; and Fletcher v. State Capital Bank, 37 N.H. 369. 2. That the occupation, essential to the continuance of the life estate, must be personal and not by a tenant, would seem to be settled by the decisions which hold that personal occupation is essential to give the homestead right originally in land. Hoitt v. Webb, 36 N. II. 158; True v. Morrill, 28 Yt. 672; Charless v. Lamberson, 1 Clarke (Iowa) 435; Floyd v. Mosier, 1 Clarke (Iowa) 512; Cook v. hTChristian, 4 Cal. 23; Taylor v. Hargous, 4 Cal. 268; Walters v. People, 18 111. 194. 3. The intention of the plaintiff in making the leases was immaterial, and it was incompetent for her to testify or the court to find an intention from her testimony in conflict with the language and legal effect of the leases. Her testimony could not properly be received to contradict and vary the written leases. 4. Even if the court should hold the intention to be material as to the house upon the premises, it cannot affect the result in this case, as there is no pretence but what the plaintiff intended to lease and the lessees actually entered and occupied the mowing land, so that as to the locus of the alleged trespass it was designedly leased for two successive years, and the plaintiff ceased for those two years to occupy it in any way; the conditional life estate therein being thereby forfeited. Tappan, for plaintiff, contended : That there is nothing in the statute constituting the homestead indicating, that a mere temporary absence and the occupying in part by another, the plaintiff receiving the income, which should oust her of her home, or her rights. It would be absurd to say, that a man, who, from convenience or necessity, saw fit to carry on his farm by a tenant, living in his own house the while, had ceased to occupy it. The statute contemplates an entire abandonment, and an absolute and permanent giving up of the possession by the widow, either by marriage and moving to another home, or in some other way, before she could lose her home, which a humane law gives to her and her children. The question of intention is material, and is one of fact in this case, which the judge, who tried the case, was competent to find, and did find in favor of the plaintiff. The court finds : "She has never intended to abandon her homestead, or relinquish her right there.” If a person leave his home for a temporary purpose, but with the intention to return to it, this change of place is not in law a change of domicil. Story’s Conflict of Laws, p. 42; Bump v. Smith, 11 N. H. 49.