Earll v. Earll

• Decision Date: 10 February 1886
• Citation: 60 Mich. 30,26 N.W. 822
• Court: Michigan Supreme Court
• Parties: EARLL v. EARLL.

26 N.W. 822

60 Mich. 30

EARLL v. EARLL.

Supreme Court of Michigan

February 10, 1886

Appeal from Kent.

Fred A. Maynard, for complainant.

Taggart Wolcott & Ganson, and C.R. Miller, for defendants and appellants.

SHERWOOD J.

The bill in this case was filed by the complainant to enjoin a sale by the sheriff of Kent county of a house and lot in the village of Sparta, and obtain a release of levy made thereon by the defendant Kinney as such sheriff, under an execution issued out of the circuit court for the county of Lenawee in chancery in favor of the defendant, Frances Earll, and against the complainant.

The only question presented by the record is whether or not the property levied upon was at the time exempt as the homestead of the complainant. The circuit judge upon the hearing, which was upon pleadings and proofs, found that it was, and granted relief accordingly.

The following facts appear from what we think may be regarded as the undisputed testimony: Prior to the year 1882, Nathan Earll and Frances Earll were living together as husband and wife in Lenawee county, Michigan. In April, 1882, they broke up housekeeping, and Mr. Earll came to Sparta, in Kent county, and Mrs. Earll remained at Adrian, in Lenawee county. On the fifteenth of March, 1883, Nathan Earll became the owner of the property in question, consisting of one village lot, and house and barn thereon. The deed to Mr. Earll recites a consideration of $500, and it appears from complainant's testimony that it has not been worth more than $500 at any time since he purchased it, and that he did not then own, and since then has not owned any other real estate. About the time Mr. Earll purchased this property Mrs Earll commenced proceedings to obtain a divorce in the circuit court for the county of Lenawee, and a decree of divorce, providing for the payment to her of the sum of $800 alimony, was entered in that court on the twentieth day of April, 1883. An execution was issued under this decree and a levy made on the lot in Sparta on July 5, 1883, and in August, 1884, the property was advertised for sale. It is claimed in behalf of the complainant that this property as soon as purchased became, and ever since its purchase has continued to be, the homestead of Nathan Earll, and being within the amount and value of the homestead exemption, is exempt from sale under this execution. The defendant's contention is that the property was not at the time of the defendant's levy occupied as the complainant's homestead and never had been. No question seems to have been made but that the quantity and value of the property came within the constitutional and statutory limits of a homestead, and proofs were taken as to the circumstances of the occupation of the premises, and as to the circumstances and former relations of...