Shoemaker v. Collins

• Citation: 14 N.W. 559,49 Mich. 595
• Court: Supreme Court of Michigan
• Decision Date: 10 January 1883
• Parties: SHOEMAKER and another v. COLLINS and another.

14 N.W. 559

49 Mich. 595

SHOEMAKER and another v. COLLINS and another.

Supreme Court of Michigan

January 10, 1883

A decree in foreclosure cannot conclude the homestead rights of any person not a party to it.

A mortgage made by a married man and covering his homestead is void, so far as his homestead is concerned, if executed without his wife's signature; and it cannot become valid by the wife's death or by suffering a decree of foreclosure to be taken pro confesso in a suit in which no issue as to homestead rights has been raised or passed upon and in which the wife has not been impleaded as defendant.

In filing a bill to protect a homestead right in land which has been mortgaged by the husband alone and against which a decree of foreclosure has been rendered, the husband should be joined as complainant, but the decree in such a suit is for the benefit of the family, and the death of the wife will make no difference if children survive.

Appeal from Berrien.

Joseph B. Clark, for complainants.

Clapp &amp Fyfe, for defendants and appellants.

COOLEY J.

This bill was filed to protect a homestead right in 40 acres of land. It appears that the complainant William Shoemaker, who was a married man, and was living upon an 80-acre lot of land which included the 40 now in question, gave a mortgage of the whole to secure a debt which has never been paid. Louisa Shoemaker, his wife, who was joined as complainant in filing the bill, did not unite in the mortgage. The mortgage was subsequently foreclosed in equity, in a suit in which William Shoemaker was defendant, but in which the wife was not joined. The purchaser under that foreclosure having taken proceedings to obtain possession of the land, this suit was instituted. The chancery court declared the mortgage and the foreclosure inoperative as to the homestead, and defendants appealed. Louisa Shoemaker died pending the suit and Laura Shoemaker, a minor daughter living with William Shoemaker, was then joined as complainant in her mother's place.

The principal argument against the decree is that William Shoemaker, having allowed the foreclosure suit to proceed to decree, is concluded by it now, and cannot have any affirmative relief grounded upon its invalidity. But this argument has no force. The mortgage was valid for all but the homestead, and the mortgages had a right to foreclose under it. No issue upon the homestead was raised or passed upon in ...