Vermont Sav. Bank v. Elliott

Citation53 Mich. 256,18 N.W. 805
CourtSupreme Court of Michigan
Decision Date09 April 1884
PartiesVERMONT SAVINGS BANK v. ELLIOTT and others.

Surplus money, resulting from a sale of a mortgagor's homestead upon foreclosure in chancery, will not be applied to the payment of subsequent levies under execution issued upon judgments against the mortgagor alone, in preference to a mortgage made by the debtor and his wife after the levies and while the mortgaged premises were occupied by the mortgagor as a homestead.

A homestead, within the constitutional and statutory limitation, and in cases where the premises occupied by the householder and family exceed those limitations as to value and are indivisible, is exempt from execution, and subject to the control and disposition of the debtor and his wife, to the entire exclusion of creditors.

Appeal from Wayne.

Walker & Walker, for complainant.

Geo. H Lothrop and Ed. E. Kane, for defendants.

CHAMPLIN J.

Defendants Edward A. Elliott and Louise H. Elliott, his wife, for some years owned and occupied a homestead consisting of a single city lot in Detroit, exceeding in value $1,500, and not capable of division so as to set off a homestead of the value of $1,500 or under. Upon this homestead said Elliott and wife executed a mortgage to the complainant. Subsequently a number of liens and mortgages were placed upon the premises, among which were the following, in their order: (1) Levy, December 26, 1877, Jason Stebbins; (2) levy, September 10, 1878, J.H. Farwell; (3) levy, September 13, 1878, Preston & Harper; (4) levy, September 25, 1878, A. Ives and others; (5) mortgage duly executed by Edward A. Elliott and wife to Louis R. Elliott, so as to bind their homestead interest in said property, under the laws of this state, to secure $5,237.35 due to mortgagee and the other appellants, November 30, 1878; recorded December 2, 1878. These levies and the mortgage are all unpaid, except so far as a stipulated payment of $4,000, out of the surplus in this case on Nos. 2, 3, and 4, may have paid some of them, and are undischarged. Nos. 1 and 5 belong to Louis R. Elliott. Nos. 2, 3, and 4 belong to Jesse H. Farwell.

The mortgage to complainant was foreclosed in this case below the property sold for about $21,000, realizing a surplus of about $6,000. Edward A. Elliott and family were occupying this mortgaged property as a homestead at the time it was sold under the decree of foreclosure. Proceedings to distribute this surplus were had, and the circuit court commissioner reported that $1,500, being the amount of the homestead interest of said E.A. Elliott and wife in the mortgaged premises, should be first paid to Louis R. Elliott on the second mortgage, (No. 5,) and the balance applied to the payment of the levies in their order. To this report defendant Farwell excepted. Pending the hearing of these exceptions, Edward A. Elliott and Louise H. Elliott died, and their personal representatives duly became parties to the suit. The circuit court sustained the exceptions, and decreed that the surplus should be applied in payment of the levies in their order. Levies 1, 2, 3, and 4 will more than exhaust the surplus. From so much of this decree as denies a first payment of $1,500 on the second mortgage, (No. 5,) the present appeal is taken. The notices of all of the levies aforesaid, in the office of the register of deeds for Wayne county, are signed with the name of the sheriff of said county, by one of his deputies, and recite that the levies were made by the sheriff. ...

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1 cases
  • Vt. Sav. Bank v. Elliott
    • United States
    • Supreme Court of Michigan
    • April 9, 1884
    ...53 Mich. 25618 N.W. 805VERMONT SAVINGS BANKv.ELLIOTT and others.Supreme Court of Michigan.Filed April 9, Surplus money, resulting from a sale of a mortgagor's homestead upon foreclosure in chancery, will not be applied to the payment of subsequent levies under execution issued upon judgment......

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