Lemerise v. Robinson

• Decision Date: 14 February 1928
• Docket Number: No. 1.,1.
• Parties: LEMERISE v. ROBINSON et al.
• Court: Michigan Supreme Court

241 Mich. 528

217 N.W. 911

LEMERISE

v.ROBINSON et al.

No. 1.

Supreme Court of Michigan.

Feb. 14, 1928.

Appeal from Circuit Court, Wayne County, in Chancery; De Witt H. Merriam, Judge.

Bill by Frank Lemerise against Alfred Robinson and others in aid of execution, to determine efficacy of levy under a writ of fieri facias. From a decree dismissing the bill, plaintiff appeals. Reversed in part, and decree directed.

Argued before the Entire Bench.

Charles L. Mann, of Detroit, for appellant.

Louis F. Hawkins, of Detroit, for appellees Robinson.

Ignatius J. Salliotte, of Detroit, for other appellees.

BIRD, J.

Plaintiff recovered a judgment of $3,404.12 in the Wayne circuit court against defendants Alfred Robinson and Albert Jaeger for a balance due him on a promissory note, dated April 28, 1920. He caused a fieri facias to be issued thereon, and the same was levied upon lots 16, 34, and 35 of Cherry Grove subdivision in the village of Ecorse. To determine the efficacy of the levy this bill in aid of execution was filed.

Lot 16.-This lot was purchased in May, 1919, on contract by Albert Jaeger and his wife, Ella. One hundred dollars was paid upon the execution of the contract, and $10 a month was paid thereon until May 12, 1924, when the parties received a deed. It will be noted that most of the consideration paid for the lot was paid after the note was given, and it does not appear that the wife contributed anything toward the consideration. In view of this, the fact that they were tenants by the entirety would avail them nothing. Newlove v. Callaghan, 86 Mich. 297, 48 N. W. 1096,24 Am. St. Rep. 123, was a similar case, and the court said:

‘It would be a gross injustice to permit debtors to apply moneys which should be applied to the payment of their debts to the creation of an estate which would be beyond the reach of their creditors. * * * In other words, estates in entirety cannot be created at the expense of creditors, and held in fraud of the latter's right.'

And defendants could not avoid this conclusion from the fact that they purchased the lot on contract a few months before the husband became obligated on the note. Michigan Beef & Provision Co. v. Coll, 116 Mich. 261, 74 N. W. 475. In this case the same point was made, but the court said:

‘We may properly infer that all of Coll's property is in this land, and that considerable was paid upon the contracts which he should have paid to his creditor, suit being then pending. This was not justified by the fact that he had outstanding contracts, and we think should be no more beyond reach than as though the entire title had passed to the wife, as said in Newlove v. Callaghan.'

Our conclusion is that lot 16 was not protected from levy by reason of the fact that it was held by Jaeger and his wife as tenants by the entirety.

The lot is also claimed to be exempt because it is a homestead. This presents the question whether a vacant lot purchased in May, 1919, on contract and a deed received therefor in May, 1924, and no improvement made thereon before the day of levy, is exempt as a homestead. The constitutional exemption provides that:

‘Every homestead of not exceeding 40 acres of land, and the dwelling house thereon, and the appurtenances to be selected by the owner thereof, and not included in any town plat, city or village; or instead thereof, at the option of the owner, any lot in any city, village, or recorded town plat, or such parts of lots as shall be equal thereto, and the dwelling house thereon, and its appurtenances, owned and occupied by any resident of the state, not exceeding in value $1,500.00, shall be exempt from forced sale on execution, or any other final process from a court.’ Section 2, art. 16, Michigan Constitution.

Statutory homestead is defined in section 12888 of C. L. 1915. In the early case of Coolidge v. Wells, 20 Mich. 79, the court held that a 40-acre tract with no dwelling upon it, and upon which the judgment debtor did not reside, was not protected as a homestead, under the foregoing constitutional provision. In the course of the opinion it was said:

‘As to the defense of a homestead, we see no ground upon which this defense can be maintained. The most that the evidence shows is that the defendant contemplates, at some future time, building a dwelling house upon the land and going there to reside with his family. But it expressly appears from the evidence that no dwelling house had ever been erected or even commenced upon the land, and that neither the defendant or any [member] of his family had ever resided upon it.

‘Neither the Constitution nor the statute has undertaken to exempt a merely contemplated future homestead. Both leave the parties first to make or obtain a homestead in fact, and then apply the exemption to the homestead thus acquired. Neither has undertaken to furnish homesteads, or the means of obtaining them, to those who...