152 Mich. 380 | Mich. | 1908
This bill of complaint was filed to subject a house and lot occupied and claimed as their homestead by defendants Crane and wife, to the payment of a judgment obtained by the complainant against defendant Elliott H. Crane.
August 16,1901, defendant Elliott H. Crane contracted with one Richard Hope for the purchase of the house and premises in question, for which he was to pay $2,550 in stated payments. Mrs. Crane - as well as her husband
Defendants Crane and wife moved into the house soon after the date of the contract and have, ever since lived there, claiming it as their homestead. In April, 1903, complainant paid Mr. Crane $2,500 as the purchase price of certain personal property, inventions and secret processes which defendant Elliott H. Crane claimed to have discovered. In the following August complainant, claiming there had been fraud and deceit practiced upon him by the defendant Elliott H. Crane, commenced suit against him by declaration in tort to recover his damages. The defendant pleaded the general issue, the case was tried and resulted in a judgment in complainant’s favor of $1,500 and costs.
Execution upon the judgment was issued, delivered to the sheriff and by him returned nulla bona, and thereupon an alias execution was issued July 19, 1904, and on the same day levied upon the premises in question, and October 22, 1904, complainant filed this bill to subject the premises to the satisfaction of the judgment and the repayment to him of the money fraudulently obtained from him by the defendant Crane.
The bill alleges that defendant Elliott H. Crane invested the money fraudulently obtained from the complainant in the premises and moved into the house with his family that he might claim it as a homestead, in furtherance of his scheme to defraud the complainant and prevent him from having it used or applied to satisfy the judgment. It recites the contract and offers to pay the balance due thereon when determined.
The defendants Crane answered. They admit the judg
It is the claim of complainant that:
“ ‘A bill may be filed for the double purpose of aiding an execution and of reaching property not subject thereto, based on a return of execution unsatisfied, and the issue and levy of an alias writ.’ Wilson v. Addison, 127 Mich. 680, and cases cited.
“ By electing to take a judgment at law against defendant Crane, complainant is not estopped from maintaining a suit in equity where the proceedings at law prove inadequate to give him the relief to which he would have been entitled had he brought his suit in equity in-the first instance. Matthews v. Forslund, 112 Mich. 591. * * H*
“ The judgment merely determined the amount fraudulently obtained from complainant and shows that the title to that money did not pass to defendant Crane, but remained in complainant Allen. Defendant Crane, therefore, became a trustee ex maleficio for the complainant as to that money. - * * *
“ Where the fiduciary uses the trust fund together with his own funds in payment for land, a trust results pro tanto, and- the cestui que trust is not bound to take the land, but may hold the trustee personally liable for the fund misappropriated and have a lien upon the land for its repayment. 15 Am. & Eng. Enc. Law (2d Ed.), foot page 1182; Pierce v. Holzer, 65 Mich. 263.” '
It is probable that the above, statements are correct statements of the law but they do not meet the quostions raised by the record. In the case of Pierce v. Holzer, supra, the administratrix of an estate used funds which belonged to the estate to purchase a house and lot which she claimed as a homestead. The homestead came into
“ I am an embalmer and a taxidermist, I am a naturalist, I am an archaeologist, a collector of curios, a dealer in curios now and then, here and there, an exporter, and I am an explorer of mounds, and I do a little lecturing once in a while. This royalty that is paid to me is on account of a chemical discovery of my own.
“ Q. As to the collection at your house that you have spoken of, will you explain briefly what sort of a collection that is ?
“A. I have collected in minerals and geological specimens of every kind, and things of mineralogy all that you can think of, and I have got some birds. I have got embalmed specimens and birds that I have skinned and stuffed and others that were recently mounted in both ways. I have got more stuffed than anything else. I got some of these in this country and some from foreign countries.”
He also testified that he had. a small revenue from these sources. It is not disputed that the $500 he borrowed from his wife was money that came to her from her relatives. It was afterwards repaid to her from the money obtained of complainant. Mr. Crane testified that he never kept the money he received from complainant separate from his other funds, but .that he used it as he needed it. It has already appeared that there is upwards of $1,-500 due upon the land contract. Had the $1,000 obtained
As long ago as McKee v. Wilcox, 11 Mich. 358, it was-said:
“ The Constitution in giving a homestead as a right does not confine it to any particular estate or interest whatever in the land. Art. 16, § 2, and the statute secures it to a person owning and occupying a house on land not his own. 2 Comp. Laws 1857, § 4500.”
And it was held that 'a homestead may be claimed in land of which a party is in possession under contract to purchase. See, also, Lozo v. Sutherland, 38 Mich. 168; Allen v. Cadwell, 55 Mich. 8; Stanton v. Hitchcock, 64 Mich. 316.
In Riggs v. Sterling, 60 Mich. 643, the following language is used:
“The homestead exemption, as established by the Constitution and laws of this State, is not alone for the husband, ánd his protection, but for the benefit of the wife and children as well. Const, art. 16, §§ 2, 3, 4; 2 How. Stat. chap. 267; People v. Plumsted, 2 Mich. 471; Beecher v. Baldy, 7 Mich. 488; Dye v. Mann, 10 Mich. 297; King v. Moore, 10 Mich. 538; Snyder v. People, 26 Mich. 110; Comstock v. Comstock, 27 Mich. 97; Showers v. Robinson, 43 Mich. 502; Sherrid v. Southwick, 43 Mich. 515; Penniman v. Perce, 9 Mich. 509; Dyson v. Sheley, 11 Mich. 527.
“ The homestead exemption, as it now exists, is not only a privilege conferred (Chamberlain v. Lyell, 3 Mich. 458), but, under the Constitution, it is an absolute right. ‘It was intended to secure against creditors a home, and, to a certain extent, the means of support, to every family in the State.’ Dye v. Mann, 10 Mich. 297; McKee v. Wilcox, 11 Mich. 358. * * *
“ When such homestead, in amount within the constitutional limit, is once established by such election, selection, and occupancy, the Constitution is a positive prohibition against levy and sale by the owner’s creditors, unless it exceeds$1,500 in value. Beecher v. Baldy, supra; Drake v. Kinsell, 38 Mich. 232. * * *
See, also, Maatta v. Kippola, 102 Mich. 116; Sammon v. Wood, 107 Mich. 506; Gadsby v. Monroe, 115 Mich. 282; Rogers v. Day, 115 Mich. 664.
In Mertz v. Berry, 101 Mich. 32 (24 L. R. A. 789), it is held that article 16, § 2, of the Constitution, must be construed as exempting the homestead from execution and sale upon all judgments whether founded in tort or in contract. ■
. The decree is affirmed, with costs.