Riggs v. Sterling

• Decision Date: 15 April 1886
• Citation: 27 N.W. 705,60 Mich. 643
• Court: Michigan Supreme Court
• Parties: RIGGS v. STERLING.

27 N.W. 705

60 Mich. 643

RIGGS v. STERLING.

Supreme Court of Michigan

April 15, 1886

Error to Wayne.

CHAMPLIN J., concurs in the result, but dissents from the opinion.

S.E. Engle, for plaintiff and appellant.

Sawyer & Knowlton, for defendant.

SHERWOOD J.

The action in this case is ejectment, to recover the possession of less than 40 acres of land situate in the county of Wayne, and not included in any town plat, city, or village. It was purchased by William Sterling, the husband of the defendant, in 1874, and was used and occupied by them as their homestead until the sixth day of March, 1883, when the husband died, and the defendant has made the same her home continuing the occupancy thereof by herself and tenants up to the time of commencing this suit. The husband, desiring that his wife should have the property in case of his death, and he being in poor health, on the twenty-seventh day of January, 1880, conveyed the property, by warranty deed, to the defendant, and the deed was duly recorded on the seventh day of October, 1882. In January, 1880, and after the making of the deed to the defendant, the plaintiff recovered a judgment against the husband, William Sterling, upon a note several years past due, for about the sum of $213. Execution was taken out upon this judgment, and the sheriff levied the same upon the premises, and subsequently advertised and sold the property to satisfy the execution. The plaintiff became the purchaser upon the sale, at the sum of $1,720, and paid the money to the sheriff, who satisfied the execution, and holds the remainder of the money, as he claims, for the defendant. Neither the defendant in the execution, nor the defendant in this suit, had, at the time of the levy, any other real estate or any other homestead, and they were using and occupying the premises as such homestead, and the fact of such occupancy by the defendant and her husband was known to both the plaintiff and the sheriff.

It further appears that neither the plaintiff nor the sheriff ever caused any appraisal of the property to be made. Mrs Sterling, when informed of the levy, desired an appraisal to be made before the sale. It is under this sale plaintiff claims title. After the time had expired for the sale to become absolute, the plaintiff instituted proceedings, under subdivision of section 6706 of the Compiled Laws of 1871, to recover possession of the premises before a circuit court commissioner, and the case was appealed to the circuit court, where judgment was had for the defendant. The case was removed to this court, and the proceedings in the case were set aside on the ground that, in summary proceedings, the question of title to real estate cannot be litigated. Riggs v. Sterling, 51 Mich. 157; S.C. 16 N.W. 320. This suit is now brought for the same purpose; the plaintiff relying solely upon his title derived under the said execution sale. The plea in the case is the general issue, with notice that the premises were, at the time of the levy and sale, the defendant's homestead, and did not exceed $1,500 in value. A trial of the case was had before Judge CHAMBERS by jury, and the defendant secured a judgment in her favor. The case is now before us for review on error.

The facts that the property in question was the home of the defendant, and that at the time of the levy and sale the defendant had one child, a minor, living with her, are not seriously questioned. Nor is it questioned but that the premises were within the quantity allowed to the defendant by the constitution for her homestead. The levy made was for the debt of the husband. The defendant was neither legally nor equitably liable therefor, neither could the husband's interest in the premises be made liable for the debt if the value did not exceed the constitutional limits of a homestead while it was occupied by his family as such.

The learned counsel for the plaintiff seeks to sustain the levy and sale, which is made the basis of the plaintiff's title, and upon which he relies to maintain this suit, upon the following grounds, viz.: His claim is (1) that the homestead right is a personal privilege; that it may be taken or not at the option of the person or persons entitled to it; that the election to claim it, and the selection thereof, must be made by the owners or occupants of the property when it is sought to be subjected to the payment of their debts, and without such claim and selection, properly notified to the sheriff when he attempts to enforce collection of such indebtedness by levy and sale, the debtor loses the benefit of his privilege to occupy the property, or any part thereof, when its value exceeds $1,500, and that the defendant or husband, having failed to make such claim or selection in this case, cannot now be heard to make the same against the plaintiff, but must be content to receive the value of the exemption in money, though such value be the amount the plaintiff saw fit to pay for it on the sale made by the sheriff. (2) That by the neglect of the defendant or her husband to make the claim and selection, their homestead right in the premises was waived, and it is immaterial whether the premises contained the exempted quantity fixed by the constitution or not. (3) That the wife relying upon the deed of the property received from her husband as a protection against the plaintiff's execution, waived and forfeited her homestead right in the premises. (4) That the value of the claimed homestead was conclusively established by the amount it brought at the execution sale, and that subject cannot be litigated in this suit; that the amount bid at the sale is conclusive. (5) That the execution sale cannot be attacked in this suit, nor the plaintiff's title derived thereunder.

The individual or family home is one of the evidences of modern civilization. It is recognized among the earliest institutions of the common law. A man's dwelling-place, with his interest in the land lying about and contiguous to it, was always inalienable and indefeasible, except when required by the sovereign, or for the defense of the state; neither could the creditors, at the common law, sell any of his debtor's land to satisfy his debt; and such continued to be the law for centuries, and for a long time after the restrictions upon alienation had been substantially removed. 3 Bl.Comm. 418. The first encroachments upon the exclusive right of the debtor to the use of his land were as late as the statute Westm. 2, (13 Edw.I. c. 18,) and not until the 1 & 2 Vict. c. 110, was the creditor permitted to make sale of his debtor's lands to satisfy his debt. The writs of fieri facias and levari facias only allowed the taking of the goods and profits of the debtor's land. The sheriff was not allowed to disturb the debtor's occupancy or possession of his lands, even under the writ elegit. The sheriff could not sell the land. He could only take possession of half the debtor's land, and could hold it no longer than the profits would amount to enough to satisfy the debt. 2 Inst. 395; 3 Bl.Comm. 160; 1 Rolle, Abr. 885. It is true that on an extent under statutes merchant or statutes staple the debtor could be deprived of the use of all his land for his debt, but this could only be done when he had consented to the judgment, (Fitz.Nat.Br. 131; 3 Bl.Comm. 419,) or lien under which the possession was taken. It is only in pursuance of statute law that the right of the creditor to have his debt satisfied by a sale of his debtor's land ever existed in this country or in England.

The homestead exemption in our state, and in this country generally, is therefore not in derogation of the common law but it is rather the limitation and exclusion of that exemption which is not in accordance with the common law. It therefore follows that the rule requiring street construction has no application to these statutes, as against the debtors, or to the constitutional provision securing the homestead to him, and it has no proper place in American jurisprudence upon this subject; and very few cases hold otherwise. In a monarchical government, where it is not only policy, but absolutely necessary, to increase tenancies and dependencies, in order to maintain supremacy in the sovereign, and give stability to the empire, I can readily see why the homestead exemption should not be permitted to exist; but in a government like ours, where a tenantry is unfavorable to freedom and the independence of the people, where the ownership of the freehold is essential to the highest development of the citizen, secures the purest patriotism, and gives the best assurance of free government, its necessity and importance cannot be well overestimated. It has been well said by distinguished jurists in our sister states "that the homestead exemption was founded upon principles of the soundest policy,--those looking to the general welfare, as well as to that of the individual citizen; and the obvious intent of the act is to secure to every householder or head of a family a home,--a place of residence,--which he may improve and make comfortable, and where the family may be sheltered and live beyond the reach of those financial misfortunes which even the most prudent and sagacious cannot avoid." Franklin v. Coffee, 18 Tex. 415; Wassell v. Tunnah, 25 Ark. 103. Indeed, the time has come when the right to homestead exemption in a reasonable amount ought to be regarded as appertaining to every citizen, in every country existing under a republican form of government; and what seems most singular to the student who examines this subject at this late day is that in this country the imperious demands of business, and the avarice and greed of wealth, should, for so long a period, have been allowed to so far control ...