54 Mich. 80 | Mich. | 1884
This action was a proceeding before a circuit court commissioner, to recover the possession of a quantity of land in the township of Ravenna, in the county of Muskegon. The parcel consisted of defendant’s homestead of forty acres, and about twenty acres adjoining. There was no question but that on the 10th day of November, 1880,
On November 10, 1880, the defendant’s wife commenced her suit against him for divorce and permanent alimony on the ground of cruelty and neglect. The bill described the land, and prayed for a sale thereof if necessary to satisfy' such decree as complainant might obtain against the defendant ; and the court decreed that defendant should pay complainant $1500 alimony, in three equal installments, in. thirty, fifty and seventy days thereafter ; and contained the' further clause that in case of failure to pay either of the. installments, those remaining unpaid should all become due,' and upon complainant filing affidavit of that fact execution might issue without further order of the court, and the land be sold thereon by the sheriff of the county of Muskegon to satisfy the complainant’s claim.
The affidavit of complainant’s solicitor was made and filed,' declaring the whole amount due, and execution was issued on the 8th day of July, 1881, by the register in chancery for the amount of the decree, directed to the sheriff, to levy upon and sell the premises in question if necessary to satisfy the complainant’s decree and costs, and on the same day the levy was made. Soon after the levy was made, defendant gave notice to the sheriff that he claimed the forty acres of the premises upon which his house stood, as his homestead. On the 15th of October, 1881, the sheriff made sale of the property in question, — the homestead part for $1100 and the remainder for $530, — and in January following, and after the sheriff’s term of office had expired, he executed to the plaintiff a deed of said parcels. During all these proceedings it appears the defendant had possession of the premises, and claimed the forty acres as his homestead.
The proceedings are brought under subdivision three of
We think the case should have been dismissed when the motion was made to the court for that purpose. The case was before the circuit court under the same limitations and restrictions which governed the commissioner.
There are several other errors well assigned, and which, we think, would have been fatal had the circuit court had jurisdiction to try the title, but it is unnecessary to consider them, as what we have already noticed disposes of the case
The judgment must be reversed and the proceedings dismissed with costs of both courts.