53 Mich. 256 | Mich. | 1884
Defendants Edward A. Elliott and Louise H. Elliott, his wife, for some years owned and occupied a homestead consisting of a single city lot in Detroit, exceeding in value $1500, and not capable of division so as to set off a homestead of the value of $1500 or under. Hpon this homestead said Elliott and wife executed a mortgage to the complainant. Subsequently a number of liens and mortgages were placed upon the premises, among which were the following, in their order: (1) levy, December 26, 1877, Jason Stebbins; (2) levy, September 10, 1878, J. H. Ear-
The mortgage to complainant was foreclosed in this case below; the property sold for about $21,000, realizing a surplus of about $6000. Edward A. Elliott and family were occupying this mortgaged property as a homestead at the time it was sold under the decree of foreclosure. Proceedings to distribute this surplus were had, and the circuit court commissioner reported that $1500, being the amount of the homestead interest of said E. A. Elliott and wife in the mortgaged premises, should be first paid to Louis P. Elliott on the second mortgage, (No. 5,) and the balance applied to the payment of the levies in their order. To this report defendant Farwell excepted. Pending the hearing of these exceptions, Edward A. Elliott and Lonise H. Elliott died, and their personal representatives duly became parties to the suit. The circuit court sustained the exceptions, and decreed that the surplus should be applied in payment of the levies in their order. Levies 1, 2, 3 and 4 will more than exhaust the surplus. Prom so much of this decree as denies a first payment of $1500 on the second mortgage, (No. 5,) the present appeal is taken. The notices of all the levies aforesaid, in the office of the register of deeds for "Wayne county, are signed with the name of the sheriff of said county, by one of his deputies, and recite that the levies were made by the sheriff. Edward A. Elliott and his family were occupying the mortgaged property as a homestead at the time these levies were made.
In Smith v. Rumsey 33 Mich. 183, it was held that the homestead was not subject to execution, but it was grants-' ble, and the husband might convey it to his wife without consideration, and such disposition was no concern of the creditors, and that “the law excludes the homestead from all remedies of creditors in all courts, and the power of the creditor to take it against the will of the owner is absolutely subverted.” And this case was aj>proved in Anderson v. Odell 51 Mich. 492; and in Lozo v. Sutherland 38 Mich. 168, where the homestead was owned by husband and wife as tenants in common, and an execution was levied upon the husband’s interest to satisfy a judgment against him, and was sold, and a deed obtained thereunder, and the husband and wife filed a bill to set aside the sale, on the ground that the
In the case under consideration, the homestead not being capable of division and exceeding in value fifteen hundred dollars, and subject to a mortgage to complainants, was exempt from execution to the extent of fifteen hundred dollars over the mortgage debt, and if the question was one between the mortgagors and the execution creditors, under the ruling in Lozo v. Sutherland the mortgagors would be entitled to the fifteen hundred dollars as exempt from levy on execution; and under the ruling in Smith v. Rumsey they could make such disposition of this exemption as they chose. They did give a mortgage upon the property which covered this exempted interest, to Louis E. Elliott, and his rights are paramount to those of the execution creditors, for the reason that those creditors could not subject this homestead interest, secured to the debtor by the statute, to their executions.
It follows that the order of the court below must be reversed, and a new one entered in accordance with these views.