McKee v. Wilcox

• Decision Date: 30 May 1863
• Citation: 11 Mich. 358
• Court: Michigan Supreme Court
• Parties: Catharine McKee v. Henry Wilcox and another

11 Mich. 358

Catharine McKee v. Henry Wilcox and another

Supreme Court of Michigan

May 30, 1863

Heard May 27, 1863

Appeal in Chancery from St. Clair Circuit.

Complainant filed her bill against Henry Wilcox and Asa D. Dickinson, for the specific performance of a contract made by said Henry Wilcox, to sell and convey to Frederick McKee complainant's husband, a city lot in Port Huron. The contract was made January 3, 1856, and was for a consideration of $ 800, of which $ 200 was to be paid down and the balance in three annual payments. The bill alleged that said Frederick and complainant took possession of the land soon after the making of the contract, and occupied the same until November, 1859, when said Frederick surrendered the contract to Wilcox and left the State. Complainant has occupied the lot ever since. While said Frederick occupied the lot, he claimed it as a homestead, its value not exceeding $ 1,000. The surrender of the contract was without the assent of complainant. Wilcox has since conveyed the lot to Dickinson, who took with knowledge of the facts. The bill claims that only about $ 100 is due on the contract, on paying which, complainant asks a decree for the conveyance of the lot to her in her own right, or to her husband.

Wilcox answered, alleging a consideration for the surrender of the contract by McKee. Dickinson also answered, claiming to be purchaser in good faith from Wilcox, and stating that "at the time of said conveyance this defendant was wholly ignorant that any one beside the said Wilcox had or pretended to have any claim or interest in said premises except that he was informed that a woman was occupying the house, and that proceedings ought forthwith to be instituted to put her out of possession, for the reason that she would pay no rent; and notice to quit was served upon her some time in the month of March, 1860."

The court below dismissed the bill, with costs, and complainant appealed.

Decree reversed, with costs, and cause remitted to the court.

D. C Holbrook, for complainant:

Land held under a contract to purchase is subject to descent as real estate: Wing v. McDowell, Wal. Ch., 175; House v Dexter, 9 Mich. 246. It is of course subject to dower; then why can it not be claimed as a homestead by the family?

In 13 Wis. 478, it is decided that one who occupies lands bought of the State and paid for, but of which no deed has yet been given, can not sell or assign his contract without his wife's assent.

Conger & Harris and W. T. Mitchell, for defendants:

The interest of a vendee under a contract to purchase is a mere chattel interest not subject to execution before full payment: Bogert v. Perry, 1 Johns., Ch., 52; 17 Johns. 350. The vendee is a mere tenant at will; and estates at will are not liable to execution: Comp. L., § 2589. We insist, therefore, that his claim was subject to his entire and absolute control, without the consent or concurrence of the wife; and that by no act of his or hers could it be made an exempt homestead.

If this view is correct, then the statute--Comp. L., § 3294--authorizing the wife to bring an action in her own name for certain property sold or incumbered by the husband without her assent, does not apply to this case. Besides, the word action, as used in the statute, is only intended to apply to suits at law, and can not be applied to the enforcing the equitable remedies of the husband.

While we concede that exemption statutes are usually construed liberally, we insist that a construction of the homestead exemption law...