Armitage v. Davenport

• Decision Date: 20 January 1887
• Citation: 64 Mich. 412,31 N.W. 408
• Court: Michigan Supreme Court
• Parties: ARMITAGE v. DAVENPORT and others.

31 N.W. 408

64 Mich. 412

ARMITAGE v. DAVENPORT and others.

Supreme Court of Michigan

January 20, 1887

Appeal from Monroe. In chancery.

Bill to foreclose mortgage. Decree for plaintiff authorizing a sale of that portion of the land not covered by the homestead and, in case of deficiency, a sale of the latter.

I.R Grosvenor, for complainant.

I.G Humphrey, solicitor for Nancy Toll, appellant, (Gouv. Morris of counsel,) for defendants.

SHERWOOD J.

James Davenport, on the twelfth day of December, 1863, owned 100 acres of land, lying in Monroe county, and upon which he and his wife, Louisa, had lived since 1855. The road ran east and west through the farm, leaving about 40 acres on one side, upon which the buildings were erected, and which constituted his homestead, and 60 acres on the other. At that date James and his wife gave a mortgage upon the entire hundred acres, upon which it is claimed there was due April 21, 1886, $1,080.58. This mortgage was duly assigned to James Armitage, the complainant in this case. On the ninth day of February, 1870, the defendant James Davenport executed a second mortgage to defendant Alfred Toll, upon the same property, which his wife, Louisa, did not sign, and upon which there was due, as claimed, $1,621.31 on the sixth day of March, 1885. Immediately after the description in this mortgage follows this clause: "And the said James Davenport, by these presents, selects and chooses the north 40 acres of said above-described one hundred acres as his homestead under the statute in such case made and provided." This mortgage was assigned by Alfred Toll to defendant Nancy D. Toll. Two other mortgages given subsequent to the Toll mortgage--one, signed by James Davenport and his wife, and the other by James alone--are shown by the record to be upon the same property; but, in the view I take of the case, it will be unnecessary to consider those further.

The bill in this case is the usual foreclosure bill, and is filed to foreclose the first mortgage. Mrs. Toll appears and answers, and asks that the complainant shall be decreed to sell the homestead to satisfy his mortgage before resorting to the parcel of 60 acres. Defendant Louisa Davenport appears and answers, and prays that her homestead be last sold to satisfy complainant's mortgage sought to be foreclosed in this suit. Charles Toll, an execution creditor, appeared and disclaimed. James Davenport allowed the bill to be taken as confessed against him. Proofs were taken before Judge JOSLIN, in open court, who, after hearing the testimony in the case, entered a decree therein that the 60 acres must be first sold to satisfy the complainant's mortgage, and only in case of deficiency can resort be had to the homestead. Defendant Nancy D. Toll alone appeals.

The question raised in this case is: In foreclosing a mortgage upon several parcels of land, including a homestead, can that only be sold to pay the deficiency remaining after a sale of all the other property mortgaged? It is as much the right of the wife, either at law or in equity, to protect the homestead rights of herself and family as it is that of the husband. Dye v. Mann, 10 Mich. 291; Sherrid v. Southwick, 43 Mich. 515; S.C. 5 N.W. 1027; McKee v. Wilcox, 11 Mich. 358.

The execution of a mortgage upon a homestead by husband and wife does not operate to release the homestead right, or waive it only to the extent it may become necessary to satisfy the mortgage. I do not think it can well be claimed that Mrs. Davenport, when she signed the mortgage, contracted with the mortgagee that her homestead only should be made liable for the mortgage debt; and I have no doubt, as between them, equity would require, on a sale of the mortgaged property, that the 60 acres should be sold first, and that the homestead should only be sold for the deficiency.

I am not able to see how Mrs. Toll's mortgage can give her any right to have the liability of their homestead increased. Certainly she has no contract to that effect with Mrs Davenport, and no interest whatever in the homestead. Neither does the law create any such contract for her with Mrs. Davenport. The law which gives the homestead right is to be liberally construed and favorably regarded. Courts of equity look with favor upon the benefits sought to be accomplished by this statute. The welfare of the family, the community, and the state are all alike interested in the maintenance of the family and the home. I have failed to discover any reason why the law should create a new contract between Mrs. Davenport and the mortgagee, or make a contract, where one never existed, between Mrs. Davenport and Mrs. Toll. It will not do to allow any fiction or theory to subvert and destroy rights secured by both statute and constitutional provisions. But I know of no fiction or theory which will allow this to be done. It has been expressly decided in this court that "the law excludes the homestead from all remedies of creditors in all courts, and the power of the creditor...