These levies were good and effectual to pass all the attachable interest of William K. Palmer in the premises levied on. If no deduction was made from the whole value of the estate by reason of any incumbrances thereon, and the creditors were content to have their levies thus made, the judgment debtor or those claiming under him cannot object on that account, as this was favorable to the debtor. The levies operated to divest no outstanding rights or interests having priority to them. The right of homestead now set up was one acquired under St. 1855, c. 238. No provision existed at the time the levies were made, which was prior to the enactment of the Gen. Sts., requiring the creditor to set off the homestead right acquired under St. 1855, c. 238, before making the levy. It was held in the case" of Pittsfield Bank v. Howk, 4 Allen, 347, that where such right existed in the debtor’s estate, it might be deducted from the value of the land taken, and the residue of the interest or estate be set off. Nor was the owner of the homestead estate required to give notice of such incumbrance to the judgment creditor or officer making the levy; and the omission so to do loes not defeat the homestead estate.
Nor has the homestead interest been defeated by the deed *404given by the husband. If that deed had been á bona fide transaction as between the parties, it could have no such effect. The fact that it is found to have been fraudulent as regards creditors of the grantor does not give it any greater effect. The right of homestead acquired by force of St. 1855, c. 238, was fully preserved by the subsequent statutes, and the provision of St. 1857, c. 298, § 6, “ that no conveyance thereof shall be valid in law unless the wife shall join in such conveyance,” was in full force and applicable to such homestead. The conveyance by the husband alone had no effect upon the homestead estate. The position assumed by the demandants, that the homestead estate is, during the life of the husband, wholly vested in him personally and subject to his control, is not in accordance with the decisions of this court. The doctrine established by our decisions is, that the estate is created for the benefit of the family, and no conveyance by the husband alone can divest the wife of the right of continuing to occupy and enjoy the same until they acquire a new homestead. It does not estop the husband, and certainly not the wife. Connor v. McMurray, 2 Allen, 202. The court say in the case last cited that “ the homestead is to be continued for the benefit of his family until after his death; and the exemption, being not less for their benefit than his own, can be waived, released or discharged only in the manner expressly provided and prescribed.”
The demandants having elected to make the wife the sole party defendant, she may well maintain and set up the homestead estate as a bar to an absolute recovery of the premises by them. The homestead right secures to her the enjoyment of the premises to that extent. Of this she is not to be divested by these levies.
It is competent for the court to enter such qualified judgment as may be necessary to secure her in the possession of the homestead. The effect of this will be to leave each of these parties in the enjoyment of so much of the estate as belongs to them severally. Under Gen. Sts. c. 104, § 9, the party entitled to a homestead, or any other party interested, may cause partition to be made, and the homestead estate to be set off.
*405It is further said that the demandants in the second of these actions must fail, inasmuch as the same was not instituted within one year after the return of the execution. This is supposed to be required by Sts. 1844, c. 107, and 1855, c. 453. The St. of 1844, it is conceded, applies only to cases where real estate has been paid for by the debtor, but the legal title retained by the vendor, or conveyed to a third person. This statute áuthorized a levy on the land, in such cases, as the property of the debtor, although no actual legal title had ever vested in him, and gave this right upon the condition that it should be followed by a suit at law enforcing the claim to the land within one year after the return of the execution under which the levy was made. The object of St. 1855, c. 453, was to prescribe the mode of returning an attachment of real estate that was alleged to have been fraudulently conveyed by the debtor to a third person, and required the officer to specify in his return the name of the person holding the record title of the premises attached. There was, however, nothing in this statute attaching to it the provisions of St. 1844, c. 107, § 4, and requiring creditors who made a levy on an estate fraudulently conveyed by the debtor to institute an action to recover possession of the estate so levied on within one year thereafter. This was so understood by the commissioners who revised the statutes, and inserted therein the provision now found in Gen. Sts.' c. 103, § 48, requiring in direct terms that in case of a levy upon land fraudulently conveyed, as well as in case of levy upon land which was paid for by the debtor but the title held in the name of another, an action must be instituted by the judgment creditor therefor within one year after the return of the execution. See Rep. of Com. on Gen. Sts. c. 103. This last statute does not however apply to the levies by the present demandants, which were made before the enactment of the General Statutes.
The question has occurred to the court whether, under the present state of the pleadings, these cases are properly presented in reference to the homestead estate. No such title is set up in the specifications of the defence. This should be done, in order to have the proper judgments entered. The ruling of the court *406was not founded upon the state of the pleadings, and no question was raised as to them.
It will be competent and proper for the superior court to grant leave to amend the pleadings in this respect. The cases will then be disposed of by an entry of the qualified judgments above stated, unless the demandants elect a new trial. Such entry would be, judgment for the demandants, subject to the right of homestead in the tenant and her husband, under St. 1855, c. 238.
Exceptions sustained.