McKee v. Wilcox

11 Mich. 358, 1863 Mich. LEXIS 34

• Court: Michigan Supreme Court
• Decided: May 30, 1863
• Status: Published

Opinion

Manning J.:

The only question in this case is whether a homestead can be claimed in land of which a party is in possession under a contract to purchase,

The Constitution in giving a homestead as a right does not confine it to any particular estate or interest whatever in the land: — Art. 16, §2 — and the statute secures it to a person owning and occupying a house on land not his own: — Comp. L. §4500.

In Dye v. Mann, 10 Mich. 298, in speaking of the constitutional provision we say, the Constitution, whatever may have been the intention of the pre-existing statute, we have no doubt was intended to secure against creditors a homestead to every family in the State. Not as a personal privilege of the debtor which to be made effectual would have to be ..claimed by him, placing him in an attitude to have his motive suspected, but as an absolute right necessary to the welfare of the household, of which the debtor should not be deprived, if an unmarried man, without some act of Ms relinquishing Ms right, or, if a married man, without the joint conveyance of himself and wife.

If this view of the Constitution be correct, it is as incumbent on a court of equity as a court of law to give it effect when it can do so consistently with the well recognized principles upon which the court acts.

Equity sometimes to promote the ends of justice considers that as done which the parties have agreed to do. Where a party is in possession of land under a contract to purchase, it treats the vendor as a trustee of the title to the land for the vendee, and the latter as a trustee of the purchase money for the vendor, and following the law gives the same effect to the equitable estate thus erected that the law gives to the legal estate. Hence the vendee’s equitable estate on his death, in equity, goes to his heirs or devisees.

By a parity of reasoning, equity will protect it against the alienation of the husband without the wife joining with him, when the land is in the occupation of 'the husband as a homestead; and the wife of a husband who refuses or neglects to perform his contract, should be permitted to do it for him to save her interest in the homestead; as she may redeem a mortgage to save her right of dower in an equity of redemption. The Court, instead of dismissing the bill, should have directed a reference to ascertain the amount due on the contract, and decreed, on the payment thereof by complainant, a conveyance of the land to the husband subject to a lien, to be stated in the deed, to complainant, to the amount so paid by her.

Dickinson is not a bona fide purchaser without notice of the legal estate from Wilcox. He admits in his answer that, when he purchased, he was informed that a woman was occupying the house, and that proceedings ought to be instituted to put her out of possession. This woman was complainant; and it was his duty to have inquired of her what claim she made to the premises: not having done so he took them subject to her equity.

Decree reversed, with costs, and cause remitted to the Court below for further proceedings.

The other Justices concurred.