Hihn

The disposition of this case depends upon the question whether a certain declaration of homestead, filed by the defendant, Mary H. Shelby, was valid or invalid.

At the time of the filing of the declaration, the premises embraced in it were owned in common by John L. Shelby, the husband of the declarant, and one Hinckley, each owning an undivided one-half. The interest of Shelby was the common property of himself and wife. Shelby, with his wife and her children, resided upon the land, as did also Hinckley, neither having exclusive possession of any part of it.

*97 Under the circumstances, Mrs. Shelby filed, in due form, the declaration of the homestead in question. After she filed it, and while she was residing with her family on the premises, her husband and Hinckley executed to the plaintiff a deed for the whole of the property for the sum of two thousand four hundred dollars, the property being at the time of the value of foxir thousand dollars. At the time of his purchase the plaintiff knew that Mrs. Shelby resided upon the land with her family, and that she claimed a homestead right thereto. She did not join in the deed to the plaintiff, and refusing to surrender to him…