Sherrid v. Southwick
| Decision Date | 09 June 1880 |
| Citation | 43 Mich. 515,5 N.W. 1027 |
| Court | Michigan Supreme Court |
| Parties | SHERRID v. SOUTHWICK. |
A judgment will not be reversed for a defect in the judge's finding, which a stipulation in the record shows was pure inadvertence.
A homestead may be claimed in lands of a decedent which he owned in common with another. Lozo v. Sutherland, 38 Mich. 168.
A mortgage given by a married man of his homestead requires to its validity the signature of his wife, even though at the time she is not living with him. The signature of a woman then, passing as his wife, when she is not, is merely void.
A wife driven from her home by the misconduct of her husband carries with her all her marital rights, including the right to preclude the conveyance or mortgaging of the homestead without her consent.
The mortgage of a homestead given by a married man without his wife's signature is void absolutely, and not merely as to the homestead interest. An heir at law of the mortgagor after his death, may maintain ejeetment against one holding under a foreclosure of it, and this, whether the heir is or is not a minor.
One who gets possession of a homestead under proceedings in foreclosure of a void mortgage, is not entitled to notice as tenant at will, before being sued in ejectment.
Error to Cass.
Edward Bacon, for plaintiff in error.
Harsen D. Smith, for defendant in error.
Mrs Southwick, the defendant in error, brought ejectment in the circuit court to recover certain land which she claimed as heir at law of John Cave, deceased. The defendant below claimed under the foreclosure of a mortgage given by John Cave, which the plaintiff insisted was void, for the reason that the lands described therein constituted the homestead of the mortgagor, and he had at the time a wife who did not unite with him in giving it. The facts were found by the circuit judge, and are in substance the following.
John Cave, in 1856, was married to Mary E. Cave, who is still living. The plaintiff in this suit was born in 1858, and is the only issue of this marriage. October 20, 1860, John Cave became the owner in fee of the south 15 acres of 30 acres of land off the west side of the east half of the north-west quarter of section 5, township 5 south, of range 13 west Cass county. In July, 1863, John Cave and the plaintiff became tenants in common of the north 15 of the same 30 acres, which had been previously owned by Cave's mother. In December, 1864, Cave also became owner of 10 acres lying east of and adjoining the 30 acres above described. Previous to 1862 Cave had resided with his family in a log-house on the south 15 acres, but in the latter part of that year he removed to his mother's house on the north 15 acres, and three years later tore down the house he had lived in before. From 1862 to the time of his death, in 1872, Cave occupied all three of the parcels of land above described, and cultivated the same as one farm. The 15 acres owned by him and the plaintiff as tenants in common was never partitioned between them. While they lived together Cave treated his wife cruelly, and neglected to provide for her the comforts of life, and in 1862 she separated from him and did not live with him afterwards, though they were never divorced.
The mortgage, under the foreclosure of which the defendants claimed, was given to one Bryant, September 1, 1867, and covered all three parcels of land. Cave's wife was then living in another state, and one Lucinda M. Cave united in giving the mortgage, but for what reason is not explained. In one of the briefs it is stated that she was then living with John Cave and passed as his wife. The mortgage was foreclosed in 1872, the land sold to one Sheffield, who afterwards deeded it to Lucinda M. Cave and to defendant, Sherrid. Under this foreclosure Sherrid seems to have obtained possession of all the 40 acres except seven and a-half acres in the north-west corner thereof, which remained in the occupancy of the plaintiff after her father's death. In this corner the dwelling-house was situated which Cave occupied at the time of his death. The present suit was instituted in 1879, after the plaintiff had attained to her majority.
The circuit judge, on the facts found, was of the opinion that the mortgage under which defendant claimed was void for want of the signature of Cave's wife, and therefore that plaintiff, as heir at law, was entitled to recover.
1. The circuit judge has failed to find what the value of the mortgaged land was; and it is urged that his judgment is for that reason erroneous, since the value may have exceeded the constitutional limit of $1,500. Technically, this objection is well taken. But it appears by a stipulation of the parties, which is returned with the record, that the value of the land was actually under $1,500, and that Cave, when he gave the mortgage, owned no other land than that which he described in it. We cannot, with this stipulation in the record, reverse the judgment, since the only result would be to send back the case for a more complete finding, which could not possibly benefit the defendant. Slocum v. Thatcher, 20 Mich. 52.
2. The house in which Cave lived having been situated on that part of the land which he owned in common with another, it is argued there could be no homestead as to that, because a homestead is exempted in its entirety, (Amphlett v Hibbard, 29 Mich. 298;) and none as to the remaining 25 acres, since that, having no dwelling upon it, was not a homestead in fact. Cooledge v. Wells, 20 Mich. 79. In Lozo v. Sutherland, 38 Mich. 168, the same question of the right to claim a...
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