Fowler v. Bracy

82 N.W. 892, 124 Mich. 250, 1900 Mich. LEXIS 512

• Court: Michigan Supreme Court
• Decided: May 18, 1900
• Status: Published

Opinions

Montgomery, C. J.

The complainant, in April, 1895, entered into a contract to sell defendant certain lands in Clare county. The contract contained the usual stipulation giving the purchaser the right to possession, and the usual stipulation that in case of default the vendor might treat the purchaser as a tenant holding over without permission. Defendant and his wife entered into possession, and have since retained possession. A portion of the land constituted their homestead. Defendant defaulted in his payments, and complainant instituted this suit to foreclose the land contract. A decree was entered authorizing a sale to satisfy the unpaid portion of the purchase price. A sale was had, and complainant became the purchaser. Possession was demanded and refused, and thereupon a petition for a writ of assistance was filed. The defendant answered, setting up a homestead right, and claiming that, inasmuch as Mrs. Bracy was not made a party to the foreclosure proceeding, their homéstead right had not been cut off. The circuit judge refused to issue the writ as against the 40 acres occupied as a homestead, but granted it as to the remainder. Complainant appeals.

The sole question, therefore, is whether, in a suit in equity to foreclose the lien of a land contract, the wife of the contract purchaser is a necessary party, when, as in this case, a portion of the land which is the subject of the contract is a homestead. This question must be answered in the negative. Stating the rights of the contract purchaser most broadly, they cannot be greater than a purchaser under a deed of conveyance who gives back a purchase-money mortgage. Indeed, this is the relation which equity accords to the parties; that is to say, equity treats the purchaser as the holder of the title, subject to the lien of the vendor for the purchase price. The question involved has been determined by this court in the case of Amphlett v. Hibbard, 29 Mich. 298. This case has not been overruled or questioned, so far as we have been able to discover. See, also, Kuhnert v. Conrad, 6 N. Dak. 215 (69 N. W. 185). True, it is held in numerous cases that the homestead right cannot be cut off by a proceeding to which the wife is not a party, but in this case, as in Amphlett v. Hibbard, the wife has no homestead interest as against the complainant’s claim. The protection of the homestead is protection against creditors. Patterson v. Patterson, 49 Mich. 177 (13 N. W. 504); Maatta v. Kippola, 102 Mich. 116, 118 (60 N. W. 300); Robinson v. Baker, 47 Mich. 619 (11 N. W. 410).

The order will be modified, and the full relief prayed will be granted.

The other Justices concurred.