Griffin v. Nichols
| Decision Date | 24 October 1883 |
| Citation | 51 Mich. 575,17 N.W. 63 |
| Court | Michigan Supreme Court |
| Parties | GRIFFIN v. NICHOLS and others. |
Where a tract of land, a part of which is the homestead of the debtor, is sold under an execution on a judgment against him and he has no actual notice of the sale, although in the neighborhood at the time, his failure to claim his homestead therein at the time of sale will not estop him from setting up such claim after the sale.
Where a party has acquired a homestead, the mere fact that his wife has left him, while a circumstance to be considered in determining the question of abandonment and loss of his homestead right, is not conclusive.
Upon examination of the evidence in this case, held, that it is not sufficient to show an abandonment or loss of homestead right, and the finding of the court below on that question is affirmed.
Appeal from Eaton.
Wood & Maynard, for complainant.
A.C Kingman and Corbin & Cobb, for defendant and appellant.
July 31, 1879, the defendants sued the plaintiff by declaration as surety for one Hollister on a promissory note, and judgment was taken by default in the month of January, 1880, for $687.05 damages and costs. February 7, 1881, an execution was taken on the judgment, returnaable on the third of May, and on the day it issued, the sheriff, by virtue of it, levied on a parcel of 40 acres, and also on another parcel of about 20 acres, adjoining and occupied with it. June 21, 1881, the sheriff sold all the premises levied on to the defendants except a small part of the second parcel, for $775. This excepted portion was sold afterwards to defendants on a new execution. November 21, 1881, the complainant filed this bill to liberate the said 40-acre parcel from the execution proceedings, on the ground that it was his homestead. The circuit court granted the relief, and the defendants appealed. As they offered no evidence, the case stands on the showing of complainant.
As we have seen, the territory levied on was larger than the law allows for a homestead, and yet no selection was claimed prior to the sale. On this ground the defendants' counsel contends that the complainant lost his right under the constitution. To this we cannot assent. He was in the neighborhood and might have been personally notified, but was not. He had no actual knowledge of the levy, or of the proceedings under it; and being wholly ignorant that there was any occasion for him to intervene, it would be going far to regard his omission as a forfeiture of his right. If he had been fairly put upon his guard,--if he had been actually notified, and had then refrained from acting,--there would be room for other considerations. It may be taken as true in general that unless a person knows there is occasion for him to speak or act, his silence or passivity will not conclude him. No doubt cases may occur of unreasonable delay, or in which circumstances exist which serve to express or imply that the right has been waived or abandoned, and these facts may be contemporary with the sale or they may be such as occur wholly or in part after it has taken place. The case before us must rest on its own circumstances, and we are of opinion that they exclude the objection.
That the premises claimed and allowed as a homestead have all the legal requisites is necessarily conceded. The quantity and value are within the limits, and the proper buildings are included. From the fall of 1878 to the fall of 1879 the place was occupied by complainant and his wife. It was their home. That it constituted his homestead during that interval is certain. The argument that it subsequently became lost to him as a homestead virtually admits it. The main contention is that he had abandoned the privilege and wholly given up the right prior to the levy and sale; and in view of this record the question seems to be one of fact, and it must be admitted that the showing is not very decisive. In such a case the opinion of the court of first instance ought not to be hastily rejected. A rehearsal of all the facts would not be profitable; a...
To continue reading
Request your trial