The defendant Mary J. Rollins, wife of the debtor, was entitled to a homestead of the value of $500 in her husband's right in equity to redeem the land from the mortgage. G. L., c. 138, s. 1. No homestead has been assigned, nor have the statute requirements providing for the sale of the homestead estate, which cannot be divided without injury, or for its entire assignment as a homestead, been complied with. The statute provides, that when, in the opinion of the appraisers, the land cannot be divided without injury, the whole shall be appraised, and if the surplus of the appraised value is not paid within sixty days after notice, the property so appraised shall be sold. If the surplus is paid, the whole land shall be set off as a homestead. If the person entitled to a homestead does not pay the surplus, the creditor may pay the $500, which shall be added to his debt, and the land set off to him, or sold, if under mortgage, to satisfy that sum. If neither the surplus nor the $500 is paid, the land appraised shall be sold as an equity of redemption is sold on execution; and if more than $500 is bid, the surplus shall be applied in payment of the execution. If not more than that sum is bid, the facts shall be returned and recorded, and shall be a good title to the land as a homestead. G. L., c. 138, ss. 12 to 17 inclusive. The appraisers appointed to value the homestead were of opinion that the land could not be divided without injury, and appraised the land without regard to a mortgage upon this and another tract of land. This was not the appraisal called for by the statute. The homestead to which the defendant is entitled is in "any interest" of the husband's in the *Page 69 land, and that interest in this case is an equity of redemption. No definite and just surplus beyond $500 could be ascertained without taking into account the amount of the mortgage upon the land; and "the whole" which the appraisers were required to value was the whole interest in which a homestead was demanded, and that was an equity of redemption. The appraisal being not of the equity, but of the land regardless of the mortgage, the true surplus beyond $500, which the defendant had the privilege to pay, and then take the whole as a homestead, could not be determined, and the proceeding was of no effect, and void. It was as if no appraisal had been made. The payment to the Belknap Savings Bank, the creditors having the first execution, by the defendant, was not a payment of a surplus ascertained upon a valid appraisal. Though accepted by those creditors, it did not bind the plaintiffs, who were strangers to the proceeding, and the set-off of the whole land to the defendant as a homestead was imperative, and the title acquired by that set-off cannot be used as a defence in this action.
The defendant, having a right of homestead in the premises, made application to the officer having the plaintiffs' execution for an assignment of the homestead; and no valid levy of any execution then in the officer's hands could be made until the assignment of the homestead, or the failure of the defendant to pay the surplus of the appraised value beyond $500, as provided by the statute. Although the application made special reference to an assignment of her homestead against the first execution, it was equally an application for an assignment against any execution then in the officer's hands. "The officer to whom any writ of execution against the husband is delivered to be levied on his real estate, on request in writing, c., shall cause such homestead, as the party applying shall elect, to be set off and assigned." G. L., c. 138, s. 7. The request is made to the officer and not to the creditors, and the statute requires the officer to act upon it if he has any execution in his hands to be levied upon the estate; and the fact that one execution creditor is designated by name in the request for a homestead cannot defeat the defendant's right to an assignment of a homestead against any execution then present to be levied. Any other construction of the statute would leave the homestead owner without that protection which the legislature very plainly intended to give. There being a request to the officer for a homestead, and no valid assignment of one, the plaintiffs acquired no title against the defendant by the execution sale. Fogg v. Fogg, 40 N.H. 288; Tucker v. Kenniston,47 N.H. 267. Against her, the homestead owner in possession, with an application for an assignment of the homestead partly executed, no rights have been acquired which entitle the plaintiffs to maintain the action.
Judgment for the defendants.
CARPENTER, J., did not sit: the others concurred. *Page 70