The opinion of the court was delivered by
Powers, J.This is a petition addressed to the Court of Chancery, based upon s. 13, c. 68, Gen. Sts., setting forth that the petitioner has title to certain real estate in Danville in which the defendants have a homestead right, and that the value of the homestead estate, with not exceeding one half acre of land thereto attached, exceeds the sum of one thousand dollars. Yide ss. 12 and 13, c. 68, Gen. Sts. The defendants insist that s. 13 applies only to cases where in point of fact not exceeding one half acre of land is connected with the buildings, and hence it cannot apply to a farm, as in the case at bar. This view of the statute practically confines its operation to village property, and such doubtless has been its practical construction in some localities.
*314Under the provisions of s. 12, the homestead is set out to the homesteader in the. same manner as in case of the levy of executions ; and thereafterwards the homesteader and owner of the residue come into a species of joint occupancy ; neither party can oblige the other to buy or sell; nor can the court compel a sale. If the severance in this case were made under s. 12, as claimed by the defendants, the practical result would be to give the defendants property worth $2000, when they are only entitled to property worth $500, and to take from the petitioner a corresponding amount, when he is entitled to all but $500.
The same injustice would be found to exist in the case of village property. A debtor has a house, barn, and garden, worth $1200. His creditor levies his execution upon the premises, and the homestead is set out. Of what value is the residue ? The creditor gets nothing, ordinarily, that he can occupy — nothing that he can rent or sell, and hence he has no inducement to incur the expense of a levy, and the homestead exemption is practically made effectual to the amount of $1200. To remedy such injustice, s. 13 was passed ; and under it, the Court of Chancery has full power to measure out justice to the parties in accordance with the spirit of the law creating the exemption.
This section does not limit the power of the court to village property. It is only limited to cases where the value of the property, defined and specified in s. 1 as property constituting a homestead, exceeds one thousand dollars in value. If the Legislature had intended to restrict the remedy to village premises, it is singular that they omitted to say so. The injustice to the owner of the residue in the case of farm property is as great as in the other. The language of the section is, “ whenever any dwelling-house,” etc.; showing that the statute is to have general application to homestead property within the limited value.
The homestead estate is limited in value to the sum of five hundred dollars ; and the rights of creditors or other persons owning the residue of the real estate, are left unprejudiced by it. They are left to be adjusted under this section upon common principles of honesty and equity.
The petitioner is clearly entitled to the remedy provided in s. *31513. He has forced upon him a farm worth less than it cost him, and the defendants propose to carve out the middle of it at a nominal price and leave him the balance. Having forced him to take the farm, it is proposed to destroy its value as a farm, by allowing the defendants to own the buildings in the middle of it. The defendants take the picture, the petitioner gets the frame. The statute does not give the homesteader the right or option of paying the balance of the appraised value of the buildings and retain them ; but the court is to determine in the particular case, in view of the equities apparent, whether to sell the whole property and divide the proceeds, or compel the creditor to buy the homestead, or allow the homesteader to buy the residue if he is willing.
The Legislature have given a practical construction to their meaning in the section in question. No. 67 of the Acts of 1864 empowers the Probate Court to order a sale of the homestead belonging to the widow and children of deceased persons, whenever it cannot profitably be severed from the residue of the real estate, as such severance would depreciate the value of the residue ; and this remedy is available to either of the parties in interest.
No action of the Legislature can anywhere be found that countenances the doctrine that the rights of creditors are to be impeded beyond the limits set in s. 1 of the Homestead Act.
The decree of the Court of Chancery is affirmed, and the cause remanded.