Burkhardt v. James Walker & Son

• Decision Date: 29 December 1902
• Citation: 92 N.W. 778,132 Mich. 93
• Parties: BURKHARDT v. JAMES WALKER & SON.
• Court: Michigan Supreme Court

92 N.W. 778

132 Mich. 93

BURKHARDT v. JAMES WALKER & SON.

Supreme Court of Michigan

December 29, 1902

Appeal from circuit court, Macomb county, in chancery; James G Tucker, Judge.

Suit by Minnie Burkhardt against James Walker & Son, a corporation to set aside an execution levy and sale. From a decree for complainant, defendant appeals. Affirmed.

William S. Jenney, for appellant.

Byron R. Erskine, for appellee.

CARPENTER J.

This is a suit in chancery to set aside an execution levy on, and sale thereunder of, a house and lot in Mt. Clemens. The execution issued upon a judgment in favor of defendant, and against complainant's husband. At the time of the levy the property in question was occupied as a homestead by complainant and her husband. The title stood in his name, and it was worth less than $1,500. Subsequently, and before the sale under the levy, complainant's husband absconded leaving complainant in a destitute condition. To procure means for her and her child's support, complainant (with the intention of speedily returning, and with no intention of waiving her homestead rights) rented the premises in controversy from month to month, reserving only the use of a back room for the purpose of storing her furniture. A couple of months later, and three days before defendant commenced to advertise for the sale under its execution, complainant and her husband conveyed the property in question to one W. J Dusse, who at once reconveyed the same to complainant. The court below gave complainant a decree. Defendant appeals, claiming that the decree should be reversed, because: (1) Complainant has no right to resort to equity for redress. (2) By moving from and renting the property, and uniting with her husband in the conveyance to Desse, complainant lost her homestead interest. (3) The levy and sale should be allowed to stand, subject to the homestead rights of complainant.

In answer to defendant's first claim, it is sufficient to refer to Lozo v. Sutherland, 38 Mich. 168, Myers v. Weaver, 101 Mich. 477, 59 N.W. 810, and Hitchcock v. Misner, 111 Mich. 180, 69 N.W. 226, which hold that equity has jurisdiction to remove a levy upon and execution sale of a homestead, and Armitage v. Toll, 64 Mich. 412, 31 N.W. 408, which holds that 'it is an 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.'

It is a sufficient answer to defendant's second claim to say that a temporary removal, with the intention of a speedy return does not constitute an...