43 Mich. 502 | Mich. | 1880
The plaintiff is the 'widow of Jacob Showers, and the mother of his three infant children who reside with her. As such widow and mother she brings ejectment to recover that part of the southwest quarter of the southeast quarter of section thirty-two in town three south of range thirteen west, Van Burén county, which lies west of a highway running through the same. Defendants are in possession of the land, and claim it by virtue of a sale made by the administrator of Jacob Showers under a license from the probate court. The highway divides the forty-acre lot above described into two parcels, the east one of which, containing six or seven acres, is occupied by the plaintiff, it having been set off to her as her dower. The west parcel, now in controversy, contains some thirty acres.
The plaintiff was married to Jacob Showers in 1856. In the same year he became owner of this forty-acre lot, and moved with his wife upon it. From that time they occupied it as their homestead until he died in 1869. Charles M. Monell was appointed administrator on the estate of Showers soon after his death, and took possession as such of the land west of the highway. The other parcel was assigned to the widow as her dower in 1870, on her petition. In 1872 the widow moved off the parcel so assigned to her as dower, into a village half a mile distant. She claims to have done this at the request and under the advice of the judge of probate and administrator.
I. It is claimed on the part of the defense that the action was barred by sections 4594 and 7137 of Compiled Laws. The first of these provides that “no action for the recovery of any estate sold by an executor or administrator under the provisions of this chapter shall be maintained by any heir or other person claiming under the deceased testator or intestate, unless it be commenced within five years next after the sale.” The second requires the action to be brought within five years after the right accrues, “where the defendant claims title to the land in question, by or through some deed made upon a sale thereof by an executor, administrator, or guardian, or by a sheriff or other proper ministerial officer, under the order, judgment, decree, or process of a court, or legal tribunal of competent jurisdiction within this State.” These are broad provisions, and seem on first reading to embrace every possible case in which the defendants’ title is derived through a probate sale. But one would be at a loss if he were in search of reasons for adopting provisions so comprehensive in meaning and scope. It cannot have been the purpose to impart any peculiar sacredness to a title derived .under judicial proceedings,
There are parties, however, who as against purchasers at judicial sales, may well be required to move with the utmost promptitude. The case of heirs whose inheritance is sold for the payment of debts of their ancestor is such a ease. The heirs are parties to the proceedings which result in such sales, and they are seldom ignorant of the several steps as they take place. If they believe these steps have not been taken’ in conformity with the law, and desire to contest the sale, they may justly be required to do so speedily, while the proceedings
But to render the reason of these statutes applicable, the possessor must not only claim title through some judicial sale, but it must be the validity- of this title which is in controversy between him and the plaintiff, and the subject-matter of the issue to be tried. It is when the plaintiff contests such a sale, that he is required to move promptly. But if the nature of the plaintiff’s right is such that it is immaterial to him whether a probate sale is regular or irregular, and he claims to recover on grounds that leave that sale out of view, the statutes can have no application to his case, because the reasons on which they are enacted are absent. The intent of these statutes is that the sales therein enumerated shall not be brought in question and contested because of defects after the time named therein has elapsed; and they cannot be applied to a case in which the plaintiff concedes, or has no occasion to question the judicial sale.
The constitutional provisions exempting a homestead from forced sale for the payment of debts are given in the margin.
But a sale thus made is likely in many cases to be ruinous to the estate, from the great uncertainty attending the continuance of the homestead right, and the consequent impossibility of finding elements of certainty whereby to determine the value of the fee subject*to it. Selling the land under such circumstances is something like selling the contingent inheritance of the heir expectant, if that were salable: the one like the other depends partly upon the continuance of life, and partly upon the will and discretion of a party having a present interest. A widow entitled with her minor children to a homestead may live and claim the enjoyment of it for twenty or even fifty years, or she may die, leaving no children, in one year, or she may at once abandon the homestead right and remove with her children to a distant State, because she finds it for her interest to reside elsewhere. The elements of value in the fee under such circumstances are so exceedingly uncertain that it is highly improbable there could be any competition in a sale except perhaps of those who would bid for the land only what it would be worth in the contingency most unfavorable to the purchaser. A sale of anything of such uncertain value must almost of necessity be a sale at a great sacrifice. Rottenberry v. Pipes 53 Ala. 452.
In Drake v. Kinsell 38 Mich. 232 an administrator sold lands in which there was a homestead right, and they were bid in by the widow. The validity of the sale was attacked, but it had been duly licensed by the probate court and was therefore not void (Woods v. Monroe 17 Mich. 238; Griffin v. Johnson 37 Mich. 87, 91), and no party interested had appealed. The widow, after her purchase, had sold the land and removed from the premises, and it was not pretended that the homestead right
This case is like Drake v. Kinsell in some of its features, and in others it is essentially different. In this case as in that, land was sold by the administrator in which there was a homestead right. Here also- there was no appeal from the order of sale, and the time for appeal had long expired. But in this case the homestead right is still insisted upon, while the purchaser insists that it was extinguished, either by the sale itself or by the concurrent or subsequent acts of the widow. That the sale alone would not cut it off we may affirm on the express provisions of the Constitution; and we have only to see whether any acts of the widow have terminated the rights of herself and of her children.
III. Thire are several acts of the plaintiff which, taken together or severally, are supposed to constitute a waiver of the homestead right:
First. She had her dower set off in one part of these
Second. The plaintiff proved a claim against the estate which could only be paid by means of a sale of this land, and when the sale had taken place, she received payment from the proceeds. There is also some evidence that she urged Bobinson to become the purchaser. In respect to these acts the circuit judge charged the jury that if the plaintiff induced the administrator to sell the land for the purpose of paying the indebtedness of the estate, or if she induced its purchase by Bobinson, or was instrumental in inducing. him to purchase, that act by itself would preclude her from recovering. She would not thereafter be suffered to claim as against him that the land constituted a homestead.
If the land was liable to be sold subject to the homestead right, this instruction must be erroneous. It must be intended in that case that plaintiff desired, solicited and induced a sale of the fee with the homestead right
The right of homestead exemption was intended by the people in adopting the Constitution to be as sacred as the right of dower, and from similar considerations of public policy. Hoskins v. Litchfield 31 ILl. 143; Lœb v. McMahon 89 Ill. 487; Regan v. Zeeb 28 Ohio (N. S.) 483. The Constitution indicates how it may be parted with, and negatives its being done in any other manner so long as the characteristics which make it a homestead remain. Beecher v. Baldy 7 Mich. 488; Dye v. Mann 10 Mich. 291; Abbott v. Cromartie 72 N. C. 292; Littlejohn v. Egerton 76 N. C. 468; Warner v. Crosby 89 Ill. 320. The most positive parol promise to sell the homestead or not to claim it is void in law even though the consideration may be ample (Ring v. Burt 17 Mich. 465; Clark v. Evarts 46 Iowa 248); and if Robinson had been assured by the plaintiff at the time, he was making his purchase that she would make no claim to a homestead, she would nevertheless have been at liberty to make it, for- the very manifest reason that the statute makes void all attempts to transfer interests in land without writing. Wright v. DeGroff 14 Mich. 164; Hayes v. Livingston 34 Mich. 384; Nims v. Sherman ante, p. 45. Even where the wife unites in the husband’s deed, it will be wholly inoperative for the purposes of a release unless it conforms in its requisites to the statute. Vanzant v. Vanzant 23 Ill. 537; Fisher v. Meister 24 Mich. 447; Connor v. McMurray 2 Allen 202; Hoge v. Hollister 2 Tenn. Ch. 606; Dickinson v. McLane. 57 N. H. 31; Cross v. Everts 28 Texas 532; Barnett v. Mendenhall 42 Iowa 296.
But if the doctrine of estoppel by acts in pais could be so applied in any case as to transfer or extinguish rights which the law provides shall pass by writing only,
The defendants insist that there was an abandonment of the homestead right by the plaintiff in this ease when she moved into the village. But if the plaintiff is believed in her .testimony she moved under the advice of those on whom she had reason to rely in matters pertaining to the estate, and without any intention of abandoning a known right. If such was the case there was in law no abandonment. Bunker v. Paquette 37 Mich. 79; Campbell v. Adair 45 Miss. 170; Tumlinson v. Swinney 22 Ark. 400; Howard v. Logan 81 Ill. 383; Moss v. Warner 10 Cal. 296; Jackson v. Reid 32 Ohio St. 443. But an abandonment by the widow would not take from the minor children the right to occupy the land as a homestead, and they might return for the purpose. Indirectly this is recognized in Griffin v. Johnson 37 Mich. 87, 92, where it is said that the widow uniting with the administrator in a mortgage of the homestead will not affect the rights of minor children. In Allen v. Shields 72 N. C. 504, it was held that minor children should be protected in their homesteads, notwithstanding the failure of their guardian ad litem to claim it in a suit against
IY. It is objected that the children were necessary parties plaintiff in the suit, but we think not. There would have been no harm in joining them. Burt v. Box 36 Texas 114. Had the widow refused to bring suit, they might have done so. But the widow, when the children live with her, is entitled to the possession of the whole land, not of an undivided interest merely; and may sue for its recovery alone. Miles v. Miles 46 N. H. 261.
We find nothing in the record that should have precluded the plaintiff’s recovery. The judgment must be reversed with costs and a new trial ordered-
ArticiiE XVI.
Sec. 2. Every homestead of not exceeding forty acres of land, and the dwelling-house thereon, and the appurtenances to be selected by the owner thereof, and not included in any town plat, city or village ; or instead thereof, at the option of the owner, any lot in any city, village, or recorded town plat, or such parts of lot's as shall be equal thereto, and the dwelling-house thereon, and its appurtenances, owned and occupied by any resident of the State, not exceeding in value $1,500, shall he exempt from forced sale on execution or any other final process from a court, for any debt contracted after the adoption of this Constitution. Such exemption shall not extend to any mortgage thereon, lawfully obtained; but such mortgage or other alienation of such land by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same.
Sec. 3. The homestead of a family, after the death of the owner thereof, shall be exempt from the payment of his debts contracted after the adoption of this Constitution, in all cases, during the minority of his children.
Seo. 4. If the owner of a homestead die, leaving a widow but no children, the same shall be exerffpt, and the rents and profits thereof shall accrue to her benefit during the time of her widowhood, unless she be the owner of a homestead in her own right.