*1 Michigan Reports. FOX v. BRANNAN. Exemptions—Bankruptcy—Apartment Homestead — in Premises Occupied by Bankrupt. Homestead $1,500 to the value of bankrupt’s extended to entire premises, consisting three-story frame house, in which bank- rupt occupied third floor and rented apartments three on other floors, two only were entitled creditors to excess over and exempted above value, which, sueh under the circumstances, only by could be reached a pursuant sale of the (Const. statute 14, 2; Comp. art. Laws 1929, §§ 14615, 14616). dissenting. North and Butzel, JJ., Appeal (Edward D.), from Genesee; Black J. (Docket Submitted October No. 11,1939. 117, Calen- 40,599.) February dar No. Decided 14, 1940. against Bill William Fox Clinton C. Brannan accounting and others for an clear title to property. defendant Bran- rendered, From decree appeals. nan Reversed.

Shaper Shaper (Carlyle Michelman, o & o of coun- sel), plaintiff.

Ralph M. for defendant. Freeman, purchaser J. Plaintiff was at McAllister, bankrupt sale the trustee’s in a interest certain three-story frame house owned defendant bank- rupt. exemptions Homestead were de- claimed property subject to and the trustee sold the fendant, exemptions. Fox dimensions single apart- 26' x located on a lot. There is one 36', consisting ment on the floor, first of five rooms and *2 apartments, a bath. the second floor are two On consisting* each of three rooms and a bath. Defend- ant lives on the third floor which extends over the large entire house and of consists room, toilet, ques- wash bowl, and kitchen facilities. There is no property tion but what defendant has no other and occupies A aforesaid a home. front stairway apartment, leads to the downstairs and a single stairway up at the side of the house to leads provides the second and third floors and also another apartment. entrance the downstairs The base- ment except ten- defendant, that apartmenfs laundry privileges ants have there; each tenant has in- use a locker garage stalled in the basement. There is a three-car premises, partitioned on the so that there is a room single part, for a car in one and the remainder is housing capable of two cars. by plaintiff accounting

A bill was filed for an of proceeds apartment of from the* rents lessees paid been have the bank- to defendant since rupt adjudging plaintiff for a sale, and decree to be apartment. of the owner the aforesaid The trial plaintiff court decreed that ten- and defendant were premises, ants common of the but that defendant any apartments, has no interest in of the and that defendant is entitled to the third floor of house said to be his homestead; which is declared that while prem- plaintiff and defendant are of the cotenants plaintiff has no ises, nevertheless dominion over the third defendant as a floor, any nor has the said defendant dominion over the premises occupied apartment tenants; required “justly parties are that both bear Reports. Michigan expenses incurred pay portions be all apartment operation of said with the in connection house, water.” gas furnishing light, heat, such as obliged to account to Defendant was also apartments plaintiff for from the rentals received subsequent bankrupt only question to the sale. The us, before is whether home- defendant’s therefore, apartments, stead in this into divided four house, premises. extends to the entire provides: The Constitution, art. 14, 2, 1 ‘Every forty exceeding acres dwelling ap land purtenances not thereon and selected the owner thereof and city plat, village; included town or in option stead at the in of thereof, owner, lot any city, village plat, parts or recorded or such *3 equal dwelling lots as shall be thereto, and the house appurtenances, thereon and its owned and by any exceeding resident of the State, not in value exempt fifteen hundred dollars, shall be from forced any process sale on execution or other final from a court. (Stat. Comp. Section Laws 1929 Ann. 27.1572), provides: any consisting quantity “A homestead, of land exceeding forty dwelling not acres, appurtenances, thereon and its to be selected any owner and not thereof, included recorded city plat village, town or or or instead at the thereof, option quantity exceeding of the owner, a land being plat in amount one within lot, recorded town city village, dwelling or or and the house thereon and appurtenances, occupied by any owned and resi- exceeding dent of this fifteen State, hundred dol- subject shall lars, not be to forced on sale execution, process other final from a for court, debt, growing or either upon debts out of or founded contract, express implied.” Fox v. regard upon to this ease, With limitations plaintiff to claim a homestead not exceed- ing premises $1,500 value are that must he a dwelling house; and that it must he owned oc- cupied the claimant. may

A premises be claimed used partly partly dwelling. King for business and for a 803). Welborn, Mich. 195 L. R. A. aWhere building was used as a hotel which claimant owned although part and in which he resided, thereof was purposes shop, used as a business barber it was premises held that such were a homestead, and that if the value thereof exceeded a lien in favor beyond of creditors such value 'attached, and only reaching a sale afforded the means of the ex- Lamont cess. 96 Mich. 175. LeFevre, In case of re Robison, 215 Fed. home- three-story building stead claimants owned a equally divided between the bedrooms, second oper- first floors; third a restaurant floor was party; premises ated a third five rooms of the claimants; were the other purposes. proceed- for hotel rooms were used In a ing bankruptcy, the court held the entire citing among authority, exempt as a homestead, King supra. other v. Welborn, cases, weight authority “The the effect that if a by1 family a debtor as used residence, be his not such, *4 may withstanding part of it to leased others for purposes.” p. 29 J. residence business C. 809. property comprising “If is homestead provides way worth more than the statute by exemption, the value he receive the balance to of his apply his debts. and his creditors supra. King Welborn, Reports. Michigan (Stat. Comp. §§ 1929, 14615,

See Laws 27.1580). Ann. §§27.1579, by Dyson Sheley, Mr. 11 Mich. referred accompanying opinion, is in the Justice Butzel degree we case; instant but similar in to the some gen- therein have not to follow rule concluded erally in the future. stated, opinion

We are of the that defendant’s homestead $1,500' to the value of extended to the entire question. bankruptcy in or the in trustee Creditors, acting” only were entitled to the ex- behalf, their which in cess over and above this homestead value, only prem- a sale of the this case could be reached pursuant ises statute.

Decree with costs vacated, to defendant. concurred JJ., Potter, Sharpe, Chandler, J. McAllister, J. The involved is the Potter, exemption. to an defendants Baldy, In Beecher v. it was said: including dwelling-house land, “It appurtenances, owned and constituting fact, a homestead in occupied by nothing the debtor, else, exempts. bring which the Constitution it And designation within the of a which the pos- exempts, own it must force, Constitution, descriptive sess all the features exempt. described in the Constitution as These are dwelling-house as follows: 1st. It must contain the appurtenances, and its a without not be which could under definition. 2d. It fact, quantity must not exceed the limited the Consti- claiming” party tution. 3d. It must be owned homestead; it. 4th. It must be him as a it must The last $1,500. and requisite not exceed value 5th, just description as much a matter *5 Fox v. * * * * * * of when reduced either the others. If, * * * quantity it still as far as exceeds divisible, specified the homesteads, not one of value, prohibited of which-is the Consti- forced sale exempt by tution; therefore, be cannot, that instrument alone. The operation of Constitu- descrip- exempted tion of has a homestead certain tion. Where homestead does not this answer competent legislature description, it is for or exempt something out of it, it, lieu as an equivalent in value.”

In that case there was involved of the application provision of the constitutional of 1850 (art. 2) statutory § exemption 16, fixed Act provided: No. Laws of 109, ‘‘ consisting That any quantity a homestead, exceeding forty land not dwelling and the acres, appurtenances, house thereon and its to be selected any the owner thereof, and not included in re- plat city village, corded town or or or instead there- option quantity of, at the owner, of land not exceeding town being in amount one lot, within a recorded city plat village, dwelling or and the appurtenances, thereon and its owned and by any subject resident of this State, shall to forced sale on execution, or other final process growing- from a court, or debts debt, upon out of or express founded contract, either implied, day July, made after the third A. D. 1848.” particularly

The court was interested the limi- placed by tation the Constitution this statute. It was said: property “Under the statute, described was exempt without reference to its and under it value, might prop-

the debtor withhold from his creditors erty worth a hundred thousand dollars or more. Michigan Reports.' *6 § the 16, 2, art. limited 1850, The Constitution exceeding exemption in value not to homesteads $1,500: option owner, of the the at thereof, “Or instead plat, city, village, or any such any or recorded town lot in equal the parts be and thereto, of lots as shall appurtenances, its

dwelling thereon, any occupied by State, of the resident owned and exceeding dollars, in value fifteen hundred shall any exempt or execution, from forced sale on process con- from a for debt court, other final ’’ adoption of Constitution. this tracted after the (3 Comp. [Stat. The Laws statute 1929, §27.1572]) provides exemption Ann. for of “a the exceeding quantity dot, amount one of land not city plat village, being or or recorded town within a appurte- dwelling house thereon and its occupied by of this resident owned and nances, exceeding in hundred value fifteen dol- State, not says nothing multiple of hotels, This lars. statute exemptions. dwellings It If the or flats. covers dwelling appurtenances its land, house and a homestead within more than it $1,500, worth has The constitutional definition. Constitution description. exempted a certain homestead a descrip- does not answer this "Where legislature competent for the tion, it equivalent something in lieu of as an it, it, out in value. Dyson Sheley, par- where the

In v. Mich. part of which had built double one been house, ties years, tenants several used and designed exemption was was held the property protect use the owner of the application dwelling no and that it had land another. The law does not ex- was leased to empt property to the amount whether $1,500, Fox merely designed covers so not. It as a homestead designation, although that comes within much as worth but preserve object home, Its is to a trifle. more. and no and wife Shraft Shraft,

In v.Orr building. occupied upper story The court exclusively building occupied as a was not held the dwelling, occupied as a homestead. lot but was building about were worth exemption to an other than based occupancy raised. wife’s was not 803), Mich. L. Welborn, 83 R. A. King family petitioner’s was conducting therein. The a hotel *7 exemption. to entitled Defend whether he was statutory exemption was limited to the ant insisted property lots; this two and that covered lot, one could be no homestead claimed without a hence, designation portion of some selection and as such. passing question, this But the said: court, he house, who has constructed which oc- “One thereby cupies upon-two homestead, as a lots, exemption. deprived property If to of his the comprising more than $1,500, his homestead worth provides way by he receive the statute exemption, the bal- and his creditors the value of his apply on his debts.” ance to property the LeFevre, In Lamont v. to A bill filed foreclose a on two lots. was was built parcels treated these should be lien. The court said to LeFevre lien attached both. Mrs. as claimed and the one, premises. rights the to a homestead in exempt it held to the that, court extent “beyond lien at- that sum the from the hen, premises a sale divided, cannot be as taches, and, reaching only the excess.” affords means Michigan Reports. tbe bill Kane, Mich. In Fitzsimons v. sought subject Georgia to sale the land Kane proofs she “the disclosed that under execution, occupied premises If her the owner home. property property in fact makes such his home no is his needs formal declaration judgment recognize creditors must its such, * * * respect extent. character and The fact premises that she tuted notice to as her home consti plaintiff of character, homestead in and of itself of and was evidence to have election * * * rights. Under a bill in aid of ex power duty protect court ecution, the has and the right, subject even if the matter is presented being’ until the decree is reduced to form. passed The statute of 1861, after Beecher v. Baldy, supra, provides: was decided,

“Whenever homestead of debtor in case, such shall exceed in value the amount of fifteen hundred dollars, the debtor shall not for that reason him lose by benefit intended to be secured or her chapter; this but in all such when in cases, opinions holding of the creditors or officer an ex- against ecution or decree as aforesaid, such house- holder, the claimed him as worth more than fifteen hundred dollars, officer persons qualified jurors, shall summon six to act as *8 by who shall oath, to be administered to them appraise premises; officer, said the said and in case the value thereof shall be more than fifteen hundred they dollars, and cannot be divided, shall make and sign appraisal of and the value, deliver same copy to the officer, who shall deliver a thereof to the family age or debtor, to some to suitable thereof, understand the nature with a notice thereto pay attached, that unless the said debtor shall the surplus, officer the said over and above the fifteen 135 Fox v. execu due dollars, or the amount on said hundred sixty days that thereafter, decree, tion or within Comp. Laws 3 1929, will he sold.” such 27.1579). (Stat. § § 14615 Ann. * provides The further statute surplus, or “In the amount due said case paid within the shall not he decree, execution pro- sixty days, the to be lawful for officer shall premises, and out ceed to advertise and sell said pay proceeds to such debtor the of said sale shall be dollars, said of fifteen hundred sum year thereafter, from execution one and apply Provided, said execution: how- the balance on in the last men- no be made case ever, That sale shall greater sum than fifteen hundred unless tioned, officer in which case the therefor, be bid dollars shall may property, execution for want of return said report decree facts to the court in which said require.” Comp. 3 the case rendered, as 27.1580). (Stat. § § Ann. Laws 14616 1929, agree with Mr. Justice McAllister. I JJ., J., C. Wiest, and Chandler Bushnell, J. concurred Potter, (dissenting). J. It is fundamental Butzel, given by to a homestead the Constitution liberally statute is be construed. See au right, 114 That

thorities collected A. L. R. 209. property occupied limited however, requires that law there homestead claimant—the ownership occupation both 472; Farnham, Mich. Beecher Wisner v. claimant. George, Baldy, Mich. 488; Herschfeldt * chap. 80, 314, 23, Aet Pub. Acts quoted is above No. section substantially (the reenacted section judicature aet), which had 109, amendatory of Pub. 1861, Act of Act Acts No. No. Pub. chapter act” only change being “said from Acts line.—Reporter. chapter” in fifth “this *9 136 Michigan Reports. ‘[Feb. Dyson 456; v. Kane, Fitzsimons Mich. 246. In Sheley, levy v. it 527, was held that a could properly be made on the half of a double house although that was a tenant the home stead claimant owned the entire claimed a interest Camp therein. Justice said: bell “Under our Constitution a laws exempt, occupied’

in order to be must be ‘owned and language clearly a citizen of this This State. im- plies apart that the must have been set as purposes a home, and for the of the owner or his family. necessary It not case before tous inquire apart may may whether set land thus temporarily not be leased nor if whether, all the land by dwelling’ family, claimed is a covered used separate stories over under their domicile used, purposes. not be or rented for other The cases deciding points, these to which reference was made argument, applicable on the to the case be- complainant upon fore us. Here the built his lot in way designed show he for two fam- portion and not one. ilies, levied has years. plain been leased for several It is that this portion properly regarded never could have been exempt property homestead. The law does designed whether amount of as a home- merely It covers much as stead or not. so comes designation, although worth but a trifle. within Its object preserve is to and no more.” home, supra, limiting In Kane, Fitzsimons v. issue actually occupied to the claimant flat in the duplex was not It raised. does over not, therefore, Dyson Sheley, supra. rule v. Defendant relies King Orr 260; Mich. Schraft, Welborn, 803), Mich. 195 L. LeFevre, R. A. and Lamont v. buildings 96 Mich. 175. In all three cases the were actually the homestead claimants. *10 Fox 137 v. building supra, upper the floor the y. Schraft, Orr living homestead claimant for the was by quarters, floor him for lower was used while the purposes. postoffiee official and some other business a supra, building King the Welborn, In v. the claimant

was a small hotel in which It and conducted hotel business. was held lived a keepers that hotel were not to be denied the benefit exemption they of the when owned land with their families and had no other home. supra, Lamont v. similar LeFevre, was somewhat upon King Welborn, based the decision was foregoing opinion part upon supra. The relies 215 I Fed. also a hotel case. do Robison, In re control the facts before not think such cases should now. us leading

In Rhodes McCormick, a case Iowa, 663), Am. Dec. Iowa, was claimed three-story building exempt. an entire was The first floor and cellar were rented a store. The second as previously by physician floor been but had rented a occupied together by with the floor third claim- The court ant at time suit. said: by calling “A defendant cannot, a house a home- by occupying make it such. He stead, cannot, using building containing forty, one room in a ex- using empt premises. entire Neither can he, all rooms of second and third stories as a liability homestead, that from the storerooms which have no kind of con- but below, particu- such. as "What with the homestead nection building part in fact used as a homestead lar a family place for the as house, is, parts the—as —as — thing, easily general ascertained. It is such a designs good that the law faith, used in are thus exempt. parts the ‘house’ within the provides meaning code, of the section used as embrace the house must that ‘the homestead Michigan Reports. ’ thereof. But the owner it is not to em- a home parts All all of a which are not brace used parts, not thus are no used, home. more a they home, than if within included were in different buildings. portions Those used as ascertained, are to be treated as a when home, locality, haying separate disconnected from house, parts building.” the other occupied, operated, The difference between a hotel apartment a claimant an and maintained apparent. apartment case of *11 occupy house the claimant as lessor does apartments They him leased to others. are rented apartments independent a term. The out for occupies only each other. a rule owner As one apartment. His homestead should limited occupies dwelling purposes. to what he his own go beyond To hold otherwise would be to far the in- purpose tent and law, as well its letter. squarely The was raised in Potter v. Clapp, (68 203 Ill. Rep. 592 N. E. 322), 96 Am. St. very and I am in apt accord with the statement of the Illinois court: occupies “In case a householder a flat in a flat

building, apartment apartment or an building, as a homestead, his residence as much discon- nected from apartments the other flats or located building though in said portion thereof occu- pied him was located a different lot or un- der a different roof; and while a case like this it might great work no harm to hold that the widow, after might death rightfully householder, possession retain the building of the entire until her assigned, homestead principle if ap- were plied containing, as is often the case large many apartments, cities, flats it would lead to absurd results.” Fox v. supra, McCormick, The court cited Rhodes 652). Mayfield den, Iowa, v. Maas N. W. (3d Ed.), p. See, Freeman Executions also, p. § 241, and Herman on the Law of 124. Executions, decree the lower court was correct in hold- exemption ing apply did building, the entire he should affirmed, appellee. costs to the J. concurred with J.,

North, Butjzel, *12 PEOPLE v. PETRILL. Prejudicial

1. Criminal Law —Pair Trial — Trial Conduct oe Judge. prosecution battery upon assault and where woman, trial court opening was late in and, upon calling court defend- attorney momentarily ant's case and while out having nearly required courtroom after hour, defend- waited plead ant to and make election as to proceed whether he would with or jury, attorney without a in the advised was never he reappeared case when he courtroom, made various re- during marks course of the trial that he much did have faith in mainly defendant who had jury, waived a and ease was by interrogations tried judge, trial was not defendant accorded a fair trial.