Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1879-03-28

Our Homestead Law.

! interest, As establishing nice quoSlioh III
regard to one of our most important laws.
The full text OF the decision is as follows
District Court of the United States, Dis
trict OF Vermont.
Fsri #,sI :: Ssr'r' In Bankruptcy.
Part of the estate of the bankrupt con-
sisted of farm on which he resided. worth
| "a 500. subject to q mortgage OF s. 800. out
OF which his homestead right, II he has any,
and whatever 1t Is, cannot be taken with
out detriment to the residue.
The bankrupt law excerpts out of the con
veyanco t. assignee, and leaves owned by
the bankrupt, among other things, such
! property Is exempted from attachment
and levy OF TX .cution by the laws OF the
| State where the bankrupt resides to the
amount 80 allowed by the laws existing in
the year ISL The laws of Vermont now,
ard in 1871 did, exempt the HOMESTEAD OF
every housekeeper or head OF family,
consisting of dwelling house, out build
ings aud the land used IN connec-
ton Herewith, to the value OF $500,
from such attachment and levy. The
assignee has asked, and, with the con
ssnt of the bankrupt, had granted to him
leave to sell the farm free OF the homestead
right of the bankrupt, and leaving tho
ayais of the farm after the sale subject to
it. There is no question but that the
bankrupt is a house-keeper or head OF a
family. mol bat that the premises consisted
of dwelling house, ETC., 80 occupied as to
come within the exemption. The only
question is as to how the homestead right
Is affected by the mortgage. The laws OF
the State govern this question, and in such
cases where there Is any question as to the
construction of those laws the construction
given to them by the hig hest tribunals of
the State is to govern. Their construction
is a. binding upon this court as the laws
themselves are, and when such construction
has been given the sole province oil this
court, in that respect, is to ascertain what
1t is and apply it
Tho construction given by the Supreme
! Court of the State to this homestead law
| has always and clearly been such as would
give this bankrupt homestead right In
| this farm. TO some extent. McC.ary
VS.. Bixby, So VI. 254 Morgan vs..
| Stearns. Al Vt 1893. Lamb vs.. Mason. 50
| VT 3i5 The only question Is whether
he is entitled to u homestead OF the full
value of $500 in the equity of redempti on,
or only to a homestead to the actual value
of $500 in the buildings and land. subject
to It's prOportiOnate share of the mortgage.
| IL he is entitled to the former he is entitled
to $500 OF the avails of the sale; il only to
the latter, he is only entitled to $500, after
! it has borne its share of the mortgage.
which is 1916 Of the value OF the whole
farm, ard would absorb 1915 Of the home
stead or of the $500, its equivalent, and
leave 27-4j, or $500 In McClary vs.. Bxby,
the Supreme Court OF the State declared and
h,li that the homestead right was RICH: to
be set out OF the estate OF the head OF u
I 4 1 - I'D
ton OF 50 much OF his estate. That decision
was steadily followed until that Of Lamb vs..
Mason. 1t has been claimed that it was not
followed there. The law has not changed
Stree 1871 If the decisions have. but has
always been the Same, and the latest con-
struction must be taken here. on this ques-
ton to be the true one, so, II there Is
change in the decisions, it must be
followed. But the cour. there do not pro-
Tess to make any change and 1t Is
not to be presumed that they did unless it
clearly appears that they did. The estate
of the bankrupt in this farm, was his equity
OF redemption According to McClary VS..
Bixby and the cases which followed 1t he
was entitled u an exemption of $500 IN
value Of tina. In Lamb VS. Mason. the
homestead had been set out in leyyIng an
execution upon the property including 1t
subject to 4 mortgage. The question was
whether the part set out for homestead
should bear its proportion OF the mortgage.
The statute provided that in making levles
upon homesteads encountered BY mortgages
they should proceed the same Is in the case
of mortgages upon distinct parcels Of land.
1t does not appear from tho report OF the
case how that requirement was carried out.
and the statute IN providing for levles on
land makes no express provision Tor such
ka al ha
after the homestead should DO set out it
would be a distinct parcel OF the land sub
iect to its share of the mortgage. then, to
give the debtor $500 in value OF equity OF
redemption, they would apprsise 50
much rs would be worth $500.
after il had sustained its share
of the mortgage. That would seem
to be correct mode OF procedure if
one II two parcels both subject to mort
gage was to be set of. In the absence of
any proof OF how the levy was made it
may have been assumed that this was the
way in which it was made. But. however
that may have been. thsre IL no question
here as to how whatever homestead right |
this bankrupt had could be set out to HIM |
in levying an execution, nor OF presrmp- |
ton a. to how it may have been set out. |
a it has never been set out. The only |
question Is as to the extent OF his right. |
IN whatever mode it might be-maintained,
presumiDg that in some way. whatever his
right is. it could be maintained. The de-
cisions were So many in number, and so uni
form that. in cases where there was no
question a. to priority of debts. as there is
meme here, the homestead man was entitled
to $500. in value Of his estate or interest in
the premises, tina. it is not to be presumed
the court intended to vary their ruling
when they did not say that they did, and
it does not appear that they must have in
tended to do so The result is that the
bankrupt was entitled to $500 in value of
his equity of redemption and is entitled to
$500 IN money out of the avails OF it.
Let an order issue to the assignee for
the payment of $500 OF the ayails of the
equity Of redemption to the bankrupt for
and on account of his homestead right.
HoYT Ii. WHEELER, Judge.