11 Mich. 527 | Mich. | 1863
The bill in this cause was filed to restrain the sale on execution of certain premises claimed as a homestead.
It appears that complainant owns a lot with a double house upon it, in the city of Detroit. The levy was made upon one half of this lot, and the part of the house upon that half, occupied by a tenant under a lease. Complainant occupied the other portion of the house. The yard in the rear was not fenced off between the houses, but was left open. The penstock used by both was in the middle of the lot. A double privy used by both was upon the east side of the premises, being the portion levied on. The house was divided equally, except as to an unfinished garret in the rear, which was not divided, and was used, if at all, by complainant. The entire premises are by some witnesses valued at more than $1,500, and by some at less.
Under our Constitution and laws a homestead, in order to be exempt, must be “ owned and oecvpied” by a citizen of this State. This language clearly implies that the premises must have been set apart as a home, and for the purposes of the owner or his family. It is not necessary in the case before us to inquire whether land thus set apart may or may not be leased temporarily, nor whether, if all the land claimed is covered by a dwelling used by the family, separate stories over or under their
The fact that the yard is used in common can not exempt the whole of it in favor of complainant. It is designed as much for the benefit of the rented portion of the dwelling as of the remainder. There is no evidence to the contrary; and such must be presumed from the whole case. The tenant is in actual occupancy of the east half of the entire premises, and if complainant has any rights there at all, they are not of such a character as to show that as to that portion of the premises they predominate over those of the' tenant, or that the latter holds a mere easement. The bill was properly dismissed, and the decree below must be affirmed, with costs.
