The opinion of the court was delivered by
Peck, J.The plaintiff’s counsel claims that even if the premises in question were the homestead of G. T. Moore, at the date of the mortgage of A. W. & J. T. Moore, to Webb, which was prior to the plaintiff’s attachment and levy against said Moores, the evidence offered to show that that mortgage was fraudulent as to the creditors of Moores, the mortgagors, ought to -have been admitted. This is claimed on the ground that as that mortgage coirtained other lands and tenements, it would be void for fraud as to so much as was not embraced in the homestead, and consequently it would be void as to the homestead also. But we think that as the homestead was not attachable, the deed as to the homestead would not be void as to creditors, even if proved to be so as to the residue of the premises embraced in the deed. It is next claimed that the homestead is a personal privthege to the debtor and family, that can not be conveyed to his grantee by such deed, for his grantee to claim as exempt just such part of the premises conveyed as a creditor levies his execution upon. But the levying creditor can obviate this by causing the homestead to be set out when he makes his levy, as it is his duty to do. It would be jio rqore embarrassing than if the debtor still owned the whole. *142It is claimed that J. T. Moore, when he surrendered the premises to Webb, after Webb foreclosed his mortgage already mentioned, and thereafter occupied the homestead as tenant of Webb, thereby abandoned the homestead right, although he continued to occupy the homestead as such tenant. But as by the mortgage and foreclosure the homestead right* which was not attachable, vested in Webb, this abandonment or surrender to Webb does not aid the plaintiff.
We think, upon the facts appearing in the case, as A. W. Moore and J. T. Moore owned the thirty acres in common upon which were two or more dwelling-houses, and other buildings, and as each with his family occupied a dwelling-house upon the premises, as his homestead, at the date of the mortgage to Webb, that each at that time was entitled to a homestaed exempt from attachment and levy; and that by that mortgage and foreclosure those homesteads vested in Webb ; even if, as to the residue of the thirty acres the deed had been proved fraudulent and void as to creditors. The seven acres deeded by Webb to the defendants is part of the thirty acres; and the 55 square rods and boarding-hóuse aud barn thereon embraced in the plaintiff’s levy, and which he claims to recover, being the same occupied by J. T. Moore as his homestead, as already stated, we think this 55 rods and house and barn thereon should be regarded as the homestead existing at the date of the mortgage to Webb, although no homestead has ever been set out; it appearing to be of less value than $500. It was the duty of the plaintiff in making his levy to have first caused the homestead to be set out; and not having done so, but having levied upon what was obviously the homestead, he can not object to having it so regarded. The plaintiff claims title by virtue of his attachment upon his writ prior to the date of the defendants’ deed from Webb, followed up by levy of execution on judgment recovered in that suit, made after the conveyance to the defendants by Webb. So that, however the other questions may be decided, if the plaintiff recovers, it must be upon the ground that his attachment on his writ was valid to create a lien; as the plaintiff did not offer to show that the defendants took their deed with notice of the alleged fraudulent character of the mortgage to Webb. If the plaintiff’s attachment *143on Ms writ was valid to create a lien, then when he subsequently made his levy he might make it regarding the title as it stood at the date of the attachment on the writ, at which time "Webb was the owner of both homesteads ; and in that state of the title there would have been no difficulty in setting out two homesteads, and regarding the premises in question in this suit as one of them. If the plaintiff’s attachment on his writ is so general, as is claimed on the part of the defendants, as not to create a lien, the plaintiff ’s title has reference to the date of his levy ; and consequently the plaintiff, in any view of the other questions in the case, can not recover, as his title was acquired subsequent to the defendants’ deed from Webb, and no offer was made to show that defendants took their deed with notice of the alleged fraud in the mortgage to Webb. Had the title, or color of title, of record in the town clerk’s office stood in A. W. &. J. T. Moore at the date of the attachment on the writ, as it did prior and up to the date of their mortgage to Webb, the attachment, “ as the property of said defendants,” of “ all the real estate in said town of .Brunswick,” would not have been invalid for want of particularity of description ; but as at the date of that attachment the title of record was in Webb, we are not prepared to say that that attachment was sufficiently certain to create a valid lien—but not deeming it necessary to decide this question, we express no opinion upon it. Nor do we deem it necessary to decide as to the objection to the plaintiff’s levy, founded on the alleged fact that one of the appraisers was not a freeholder.
Judgment affirmed.