Lozo v. Sutherland
| Decision Date | 22 January 1878 |
| Citation | 38 Mich. 168 |
| Court | Michigan Supreme Court |
| Parties | John B. Lozo and Catharine Lozo v. Hiram A. Sutherland |
Appeal from Mason.
Bill to set aside a sale. Defendant appealed.
Decree affirmed with costs.
White & Haight for complainants and appellees. A homestead is exempt whether the title is in the husband or wife, or where the legal title is in neither, and where the legal title is in one and the equitable title in the other, Murphy v Crouch, 24 Wis. 365; all exemptions are for the benefit of the family and not for individuals, Shepard v Cross, 33 Mich. 98.
H. A Sutherland and Hugh McCurdy for defendant and appellant. Where the undivided half of a homestead is conveyed to the wife to vest it in her more securely, neither husband nor wife can claim a homestead exemption in the other half Herschfeldt v. George, 6 Mich. 469; Wisner v. Farnham, 2 Mich. 475; only the owner and occupant can claim exemption, Amphlett v. Hibbard, 29 Mich. 298; People v. Plumsted, 2 Mich. 465; Fox v. Willis, 1 Mich. 321.
Complainants filed their bill of complaint for the purpose of having set aside a certificate of sale made by the sheriff of certain premises claimed as a homestead and to have defendant release to them all title claimed by him under such sale.
The bill alleges that complainants are husband and wife occupying the premises, being less than a city lot, as a homestead; that the value thereof, exclusive of certain mortgages thereon given prior to the levy, does not exceed $ 1,500; that complainants own the premises as tenants in common; that defendant had recovered certain judgments against John B. Lozo; that executions were issued thereon and a levy by virtue thereof made upon John B. Lozo's undivided half, and sold to defendant who had obtained a deed thereunder. Defendant appeared and demurred to the bill, which was overruled and leave given to answer. No answer having been put in, the cause was heard upon the bill as confessed, and a decree rendered in favor of complainants. Defendant appealed.
The appellant insists that the bill of complaint should show all the facts necessary to a full description of a homestead as defined by law; that there is no averment in the bill that there was any dwelling house on the land and appurtenances, and no averment that the value of the premises did not exceed the sum of fifteen hundred dollars.
No very nice technicalities should be resorted to on an examination of pleadings so long as it is apparent that the issues sought to be raised can fairly be brought up by them, and that the parties have not endeavored to keep back or cover up something which should appear.
The bill of complaint alleges that the complainants are owners in fee of the premises [describing them] "and have their residence in the building situated on said lot and occupy the same as a homestead, * * and that said premises were occupied by complainants, who were then husband and wife, as a homestead at the time of said levy."
It is alleged, therefore, that there is and was a building situate upon the lot, in which they resided, and that they occupied the same as a homestead. This we think is fully equivalent to a distinct allegation that there was a dwelling house on the premises. If there was a house or building there and they resided in it, we think that would entitle such a building to be dignified with the name of dwelling. As to the question of value, the allegation is "that the whole value of the said premises over and above the amount of two mortgages prior in date to the date of the record of the levy of the execution in favor of Hiram A. Sutherland hereinafter set forth does not exceed the sum of fifteen hundred dollars." While it would have been better and more satisfactory to have set forth more in detail the mortgages referred to, yet under a general demurrer we think the allegation must be considered sufficient.
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