Beecher v. Baldy

• Decision Date: 09 December 1859
• Citation: 7 Mich. 488
• Court: Michigan Supreme Court
• Parties: Luther Beecher v. Peter Baldy and others

7 Mich. 488

Luther Beecher v. Peter Baldy and others

Supreme Court of Michigan

December 9, 1859

Heard November 11, 1859; November 12, 1859 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Questions reserved from Wayne circuit, in chancery.

Luther Beecher, filed his bill of complaint against Peter Baldy, William Jennison, jr., Edward V. Cicotte, and Francis X. Cicotte, setting forth that Peter Baldy, on the fifteenth day of April, 1858, recovered a judgment against complainant in the circuit court for the county of Wayne, for the sum of one thousand dollars and costs, which judgment was recovered upon a debt incurred April 25th, 1857, and is still unpaid; that he is the owner and occupant of the easterly half of lot sixty, on the north side of Jefferson avenue, in the city of Detroit, on the Lambert Beaubien farm, and of a dwelling-house situated thereon; that said lot is twenty-five feet front, by one hundred feet in depth; that the entire front of said lot is covered by said dwelling-house; that he selected said premises many years ago, and long before the obtaining of said judgment, as his homestead, but that he made no registry or other entry of said selection, being advised that the same was unnecessary and useless; that the value of the said premises was, at the time he selected the same, and is now, more than the sum of fifteen hundred dollars, to wit the sum of five thousand dollars; that he claims said premises as his homestead, and resides thereupon, and has so resided for many years; and he insists that by the constitution and laws of the state of Michigan, the same is exempt from execution, levy and sale.

That said Peter Baldy, on or about the fifteenth day of April last past, by William Jennison, jr., his attorney, sued out an execution upon said judgment, and put the same into the hands of Edward V. Cicotte, sheriff of said county of Wayne, for service; and the said Cicotte, by Francis X. Cicotte, his deputy, by virtue of said execution, and by direction of said Jennison, attorney for said Baldy, has (amongst other property) levied upon said homestead, and advertised the same, and the whole thereof, for sale by virtue of said execution, and said Baldy and Jennison give out and threaten, that the said homestead, and the whole thereof, shall be sold to the highest bidder, the same as though it were not complainant's homestead.

That on his first receiving notice of said levy, which was very recently, and after said levy, complainant notified said sheriff, that he regarded the said property as his homestead; that he had selected the same as such, and forbade him to sell the same.

And he prays, that defendants be restrained from selling or offering for sale said homestead, or any portion thereof; or that in case of sale thereof, they may be decreed to pay to complainant the sum of fifteen hundred dollars first received on account of the sale of said homestead, or that he may have such other and further relief as the nature of the case shall require.

The defendants demurred to the bill, for want of equity, and also for the following reasons:

Because it does not appear by complainant's bill that the selection by him of the premises described in said bill was made as his homestead (under the laws and constitution of the state of Michigan) previous to or at the making of the levy thereon by the sheriff of the county of Wayne, mentioned in said bill; nor when said complainant made the selection of the premises mentioned in said bill as his homestead, nor how such selection is shown or manifested.

And further, that said bill does not state when complainant gave notice to the officer holding the execution, that he claimed the premises levied upon as his homestead, or how he gave notice.

Upon the hearing of this case on demurrer to the bill, the following questions were reserved for the consideration of this court:

First. Whether, under the provisions of the constitution and laws of this state, the complainant can select for a homestead the dwelling used and occupied by him, so as to enable him to hold it exempt from execution, without a selection in writing, executed, acknowledged and recorded, in the manner provided for the execution, acknowledgment and recording of deeds of real estate.

Second. Whether the dwelling-house of complainant, situated as described in the bill, and which, with the lot, is worth the sum of five thousand dollars, can be selected by the owner and occupant thereof as a homestead, so as to exempt it from a levy and sale on execution.

Third. Whether any portion of, or interest in, such dwelling-house can be so selected; and if so, what interest or portion, and how is the same to be selected, defined and reserved.

Fourth. Can a dwelling-house thus situated, and of such value, and selected as a homestead by the owner and occupant thereof, be levied upon, and sold upon an execution against such occupant and owner, issuing upon a judgment founded upon an indebtedness incurred since January 1st, 1857?

Fifth. If such dwelling-house can be thus sold, has the owner and occupant thereof, being the debtor in execution, any right to any portion of the proceeds of said sale; and, if so, to what amount, and how is the same to be ascertained and secured to him?

Sixth. Must the notification to be made to the officer making the levy upon a homestead, required by § 4497 of compiled laws, be made at the time of the levy, or may it be made within a reasonable time after the debtor has notice of such levy, if before sale?

Seventh. Is it necessary that the notice to the sheriff, required by that section, should be in writing?

Eighth. Is said § 4497 still in force?

C. I. Walker, for complainant.

Exemption laws should receive, as they generally have received, a fair and liberal construction, so that the noble and humane purposes which they have in view shall be effectually carried out: 10 Metc. 507; 24 Conn. 338; 22 Pa. St., 191; 22 Ala. 621; 20 Mo. 75; 3 Sneed 630; 12 B. Monr., 57; 7 Blackf. 500; 3 O. S. R., 270; 15 N. Y., 489.

With this general principle in mind, let us examine the questions:

1. Neither the statute nor the constitution points out how, or in what manner, the selection is to be made, so as to make a residence a homestead. It is plain that it is "to be selected by the owner thereof," but beyond that, both the statute and the fundamental law is silent.

We submit, that mere occupation may be a selection where the premises occupied do not exceed in quantity that allowed for a homestead; and that, where they do so exceed, any act or determination of the occupant and owner making the selection is sufficient. It would be legislation to require such selection to be made by deed.

And it is clear, that by the third section of the law of 1848--Comp. L., § 4497--as against an execution, no previous selection is required. It is enough that the debtor "regards as his homestead" the dwelling he owns and occupies. If he occupies more than the permitted quantity, he may, after the levy, "select and set apart by metes and bounds" the premises he regards as his homestead: 2 Mich. 469; 6 Mich. 468.

And it seems equally clear, that this selection need not be made by deed, or even in writing. He may "notify the officer." Notices in relation to proceedings in court should be in writing, although not expressly required; but not so "notices" of this character: 5 B. & Ald., 539; 15 Wend. 425; 5 Hill 101.

2. The second question may depend upon the question whether section one of the act of 1848 is still in force, for in that section there is no limitation to the value of the exempt homestead. It is unquestionably still in force unless it has been repealed by implication, by Const., art. xvi, § 2. One statute does not, by implication, repeal another, unless the repugnancy is clear and strong: Sedg. on Stat., 121, 129. The same rule is applicable to a repeal by a new constitution: Sedgw. on Stat., 489, 490; 3 Mich. 248; Ibid., 403, 405; 4 Mich. 244; 5 Mich. 259.

We think the fair construction of section 2 of art. xvi, is, that it is a requirement that, at all events, there shall be exempt a homestead of forty acres, or a town or city lot, with the dwelling, if the latter does not exceed in value $ 1,500--leaving to the legislature to determine what should be the maximum value of such exempt homestead.

This view is very strongly confirmed by the history of this article in the convention, and the debates upon it, as well as by the phraseology of section one, and the omission to put any limitation as to value, upon the forty-acre homestead: Convention Debates, 659, 661, 680, 740.

It is further confirmed by the action of the legislature, or rather, by its non-action, in leaving the law of 1848 upon the statute book.

3. The third question only arises in case the court hold the second section of the law of 1848 to be repugnant to the constitution. If repealed, the simple question arises, whether, if a debtor owns and occupies a homestead worth over fifteen hundred dollars, the whole is liable to execution; or whether he may reserve a part thereof, up to the value of $ 1,500, to be set apart according to the requirements of the law. We see no practical difficulties in this course. Portions of the house, and rights in passage ways, etc., could be set apart, and the rights of all parties defined, as in setting off dower, and as portions of dwellings are set off under the appraisal laws of New England: Mass. S., 464; Vt. S., 241.

Unless this can be done, the object of this humane provision will be entirely defeated, as to a large class of deserving debtors and those, too, who will most keenly feel and...