Amphlett v. Hibbard

• Decision Date: 05 May 1874
• Citation: 29 Mich. 298
• Court: Michigan Supreme Court
• Parties: Moses H. Amphlett and another v. Daniel B. Hibbard

29 Mich. 298

Moses H. Amphlett and another v. Daniel B. Hibbard

Supreme Court of Michigan

May 5, 1874

Heard April 24, 1874

Error to Ionia Circuit.

Ejectment. Defendants bring error. Affirmed.

Judgment of the circuit court affirmed, with costs.

Wells & Morse, for plaintiffs in error.

Kane & Hibbard, for defendants in error.

Christiancy J. Cooley and Campbell, JJ., concurred. Graves, Ch. J., did not sit in this case.

OPINION

Christiancy J.

This was an action of ejectment brought bye Hibbard against the plaintiffs in error, in the circuit court for the county of Ionia, to recover a small lot in the village of Ionia. The defendants below set up in defense on the trial the claim of a homestead right in said premises. The circuit judge upon the trial before himself without a jury, found and decided against the claim.

The following is his finding of facts and law:

"From the testimony in this case I find the facts to be as follows, to wit: August 29, 1867, John W. Amphlett and Moses H. Amphlett were tenants in common, each holding and owning an undivided half of lands in question. Upon that day, John W. and wife, by warranty conveyed his undivided half to Moses H. To secure purchase money, Moses H. gave to John W., the same day, a mortgage upon the entire property. The defendant Amanda E. did not join in said mortgage.

"Second. Subsequently said mortgage was foreclosed in chancery, sold by circuit court commissioner, and bid off by, and deed given to plaintiff, for four thousand two hundred dollars, leaving a surplus in the hands of the commissioner of nine hundred and twenty-seven dollars and sixty-four cents. The said Amanda E. was not a party to the foreclosure.

"Third. At the date of said mortgage, and from April, 1866, previous, said Moses H. and wife Amanda E., and family, had occupied a portion of said premises as a home, and have ever since, and now occupy.

"Fourth. At the date of said mortgage, there was a two-story building upon the premises, twenty-four by seventy feet. In the rear and attached thereto, was an addition or leanto, fourteen by twenty-four feet. The first story was occupied as a crockery store by said John W. and Moses H. The second story was occupied by Moses H. and family, as stated in No. three. The leanto was used partly by family and partly for store purposes. No cellar under main building; an excavation of small cellar, unwalled, under leanto, used by family. The upper story had parlor, sitting room, dining room, kitchen, five bedrooms, pantry, and two clothes-presses. There was also a rain cistern under the leanto, used mainly by the family; occasionally a pail of water drawn and used for store purposes. The value of the premises at that date, six thousand dollars. The said defendant Moses H., during the spring of 1866, expended four hundred and fifty dollars in fitting up said dwelling for a house.

"Fifth. An abstract of title to the lands described in the declaration is hereto attached and marked "A," said abstract being a statement of the conveyances of the land in question from 1864 until 1873, inclusive, and have the same effect as proof as though the original conveyances were put in evidence, and the facts found accordingly.

"Sixth. A few days before commencement of this suit, defendant Amanda E. stated to plaintiff that she claimed an interest in the premises.

"Seventh. The foreclosure proceedings were regular.

"Upon the facts as stated the defendants claim a homestead in the premises, described in the plaintiff's declaration. The constitution has only exempted a homestead as an entirety, not a part of, or an undivided interest in a homestead. Judgment for the plaintiff and against defendant, and with costs.

(Signed.) "Louis S. Lovell.

"Circuit Judge."

The judge was clearly right in holding that "the constitution has exempted a homestead only as an entirety, not a part of, or an undivided interest in a homestead." And I am inclined to think that the same is true of the statutes of 1848 and 1861 (Comp. L. §§ 6137-6145), and that without further legislation there is no practical mode of working out and securing any homestead in an undivided half, more especially when the claim of a homestead is set up to the upper story only, of a building owned in common with another. But I express no definite opinion upon the question, because I think it is not properly involved in the present case.

From the bill of exceptions it appears that the abstract referred to in the finding was introduced in evidence by consent of the respective parties, to stand in the place of the original conveyances and to have the same effect as evidence; the counsel for the defendant objecting to the abstract so far only as it showed a conveyance of an undivided half of said lands from the defendants Moses H. Amphlett and wife to Joseph W. Amphlett, dated June 13, 1870, recorded the same day, this being the only objection to the admission of evidence, and there being no complaint that any evidence was improperly rejected.

The errors assigned are: First, That the circuit judge erred in admitting the abstract of the deed from Moses H. Amphlett and wife to Joseph W. Amphlett, dated June 13, 1870;Second. In deciding that the plaintiffs in error were not entitled to homestead rights in said premises; and (which is the same in substance).Third. That the facts found do not support the judgment.

The first error assigned is very clearly untenable, and was not specially relied upon on the argument. The deed executed by the defendants below, to Joseph W. Amphlett, after the time when they claim their homestead right attached, had a direct and very material bearing upon the question of their homestead rights.

Under the second and third assignments of error, various points were relied upon which it is difficult to see the pertinency of under the facts appearing in the case.

It seems to be admitted that the mortgage of the undivided half of the premises, under the foreclosure of which the plaintiff below claimed title, being for purchase money, was a valid security upon that half of the property, though the wife did not join, and that it would take precedence of any homestead...