King v. Welburn

• Decision Date: 14 November 1890
• Citation: 83 Mich. 195,47 N.W. 106
• Court: Michigan Supreme Court
• Parties: KING v. WELBURN et al.

47 N.W. 106

83 Mich. 195

KING v. WELBURN et al.

Supreme Court of Michigan

November 14, 1890

Appeal from circuit court, St. Joseph county; NOAH P. LOVERIDGE Judge.

How. St. Mich. � 7721, provides "that a homestead, consisting of any quantity of land not exceeding forty acres, and the dwelling-house thereon; and its appurtenances, to be selected by the owner thereof, and not included in any recorded town plat or city or village, or instead thereof, at the option of the owner, a quantity of land not exceeding in amount one lot, being within a recorded town plat or city or village and the dwelling-house thereon, and its appurtenances, owned and occupied by any resident of this state, shall not be subject to forced sale on execution, or any other final process from a court, for any debt or debts growing out of or founded upon contract, either express or implied, made after the 3d day of July, A. D. 1848. This section shall be deemed and construed to exempt such homestead in the manner aforesaid, during the time it shall be occupied by the widow or minor child or children of any deceased person, who was when living, entitled to the benefits of this act."

Howell, Carr & Barnard, for appellant.

S. M. Constantine, for appellees.

GRANT J.

Upon the foreclosure of a mortgage executed by the defendants April 6, 1882, the surplus in excess of the amount due including costs, was $1,375.50. Defendant Jacob A. Pratt thereupon filed a petition claiming one-half of this amount, and asking that it be decreed to him. The defendant Welburn answered said petition, and interposed two objections to petitioner's claim: (1) That he owned the land by virtue of a sheriff's sale, upon execution and deed in pursuance thereof; (2) that he holds an equitable lien upon the fund as against the petitioner. The defendants Alfred Welburn and Jacob A. Pratt were tenants in common of the premises which were described as lots 1 and 2 in block 48, and also lot 21 in block 49 1/2, in the village of Three Rivers. Upon lots 1 and 2 was a three-story building used as an hotel, and a two-story wooden building in the rear used as a dwelling-house, and a barn upon lot 21 used in connection with the hotel. They and their wives executed the mortgage in question. Welburn leased to Pratt his undivided half of the premises for an annual rental. Pratt, his wife and daughter carried on the hotel from 1882 till the property was sold upon the mortgage in 1887. They lived in the hotel, had no other residence or home, and land or other property out of which to construct a homestead. When the sheriff levied upon the property, defendant Pratt gave him a verbal and written notice that he claimed a homestead in it. This claim was disregarded, and the property sold by the sheriff, without any regard to the homestead. The rights of the parties have, by the foreclosure sale, been transferred from the land to the money realized upon the sale in excess of the amount due. If the petitioner had homestead rights, then the execution sale was void, and he is entitled to one-half of the surplus, which was accorded to him by the decree of the court below. His right to a homestead is denied, because it is claimed that it was of such a character and description as not to permit homestead rights being claimed therein. It is well settled in this state that a homestead can be claimed by a tenant in common. Shepard v. Cross, 33 Mich. 98; Lozo v. Sutherland, 38 Mich. 168; Sherrid v. Southwick, 43 Mich. 518, 5 N.W. 1027; Tharp v. Allen, 46 Mich. 389, 9 N.W. 443; Cleaver v. Bigelow, 61 Mich. 47, 27 N.W. 851; Kruger v. Le Blanc, 75 Mich. 425, 42 N.W. 853. It is equally well settled that a homestead can be claimed upon premises used partly for business and partly as a dwelling. Orr v. Shraft, 22 Mich. 260; Skinner v. Shannon, 44 Mich. 87, 6 N.W. 108; Stanton v. Hitchcock, 64 Mich. 328, 31 N.W. 395. Any reference...