132 Mich. 381 | Mich. | 1903
Lead Opinion
(after stating the facts).
“In case the title to such lands upon which improvements are made is held by husband and wife jointly, or in*384 case the lands upon which such improvements are made are held and occupied as a homestead, the lien given by this act shall attach to such lands and improvements if the improvements be made in pursuance of a contract in writing signed by both the husband and wife. ”
Does the word “homestead,” as used in the statute, mean the house, buildings, and premises occupied by the householder and his family as their home, without regard to value, or is it used in the more restricted sense of an exemption, as used in the Constitution? “Homestead,”' defined by the Constitution, does not mean the homestead as used in its popular sense, or as used in other branches of the law. One of its descriptions is its value, to wit, $1,1500. Beyond that value it is not exempt. It was, therefore, early held by this court that where the, homestead provided by the Constitution exceeds in value $1,500, and is indivisible, legislation was necessary in order to secure this exemption to a debtor, and that without such legislation no homestead exists in favor of the family. Beecher v. Baldy, 7 Mich. 488; Zoellner v. Zoellner, 53 Mich. 626 (19 N. W. 556). Subsequently, to meet this decision, the legislature provided for a determination of the value of the premises occupied as a homestead, and securing to the debtor $1,500. 3 Comp. Laws, § 10369. Under this act an appraisal is to be made when an officer has an execution or a decree to, enforce against the homesteader. If the appraisal exceeds $1,500, the householder must pay the excess over and above that amount, or the amount due-on such execution or decree, within 60 days. If he does not do this, the premises may be sold. A mechanic’s lien was held enforceable under the above statute, although the lien law made no provision for a lien upon a homestead. Lamont v. Le Fevre, 96 Mich. 175 (55 N. W. 687). Mortgages and deeds not signed by the wife, though void as to the homestead, are valid a,s to the excess over and above the homestead. Dye v. Mann, 10 Mich. 291; Wallace v. Harris, 32 Mich. 380. This holding applies only to cases where the premises are divisible. A mort
We think the legislature in this act used the word “homestead,” not in its broad and popular definition, but in its restricted definition as used in the Constitution. The purpose was not to exempt the*premises used for the family as a home from the operation of the lien law so as to protect premises worth, perhaps,'$50,000 or more, but to protect the homestead provided for in the Constitution. Counsel say that laborers and materialmen might protect themselves by ascertaining whether the contract is signed by the wife. So they might do this where no lien is provided for; and, if such men had always been thoughtful and careful enough to so protect their • interests, there would have been no necessity for any lien law. Under the construction contended for by defendant Des Rochers, the lien law would be valueless in a large part of the transactions in which laborers and materialmen are engaged. We think the learned circuit judge erred in the conclusion reached.
Decree reversed, and decree entered for the complainant and cross-complainants, with the costs of both courts.
Dissenting Opinion
(dissenting). I cannot agree with my Brother Grant in his conclusion in this case. It cannot be doubted that the legislative declaration in 3 Comp. Laws, § 10711, that a lien shall attach to a homestead for improvements made upon the property under certain conditions, excludes a lien in all other cases. It is required, then, that, before a lien shall attach “in case the lands upon which the improvements are made are held and occupied as a homestead,” there shall be a contract in writing, signed by both husband and wife. That the premises in this case were so used and occupied within the meaning of the statutes relating to homesteads appears not to be questioned. But a construction of the word “homestead ” is adopted which, it seems to me, is entirely untenable. If it is true that the word “ homestead,” used in this sentence, means a homestead not exceeding in value $1,500, then it logically follows that no writing is required in such case, and the lien attaches to the whole property, not to the excess over $1,500, for the only requirement of writing is as to property held and occupied as a homestead. If, on the other hand, this property is in-fact held and occupied as a homestead, then, unless we ignore the plain language of the statute, no lien can attach unless the contract therefor be in writing. This construction of the term “ homestead ” is plainly that which has been adopted by the legislature.' If we turn to 3 Comp. Laws, § 10362, we find the legislature declaring that:
,“ A homestead, consisting of any quantity of land not exceeding forty acres, and the dwelling house thereon and its appurtenances, to be selected by the owner thereof, and*387 not included in any recorded town plat, * * * shall not be subject to forced sale on execution.”
If this section stood alone, it is very clear that the value of the exempted property would not affect the right of exemption. It is only by virtue of other provisions of the act, namely, section 10369, that the limit of $1,500 is fixed, by authorizing a proceeding under which tbe excess in value over $1,500 may be reached. Tbe statute in this case (3 Comp. Laws, § 10711) contains no such provision. The lien does not attach in any case to lands held and occupied as a homestead, unless tbe contract be in writing.
There is another difficulty that confronts tbe complainant in the present case, as it seems to me. This record fails to show what the value of the premises was at tbe time the lien attached. By this I do not mean at the time tbe claim of lien was filed, but at the time when the work was done.
In my opinion, the decree should be affirmed.
