In this cause there is no real ground upon which the decree in the Court below, can be reversed or altered.
It is true,'that the bill is not as full and particular in every respect, as bills usually are in this class of cases; still, it is sufficiently so in matters of substance, to make a case that authorized the Court below to' grant the relief sought under it.
Tn view of the facts in the case, it is entirely immaterial whether the conveyance of Joseph S., to his brother James L., was, for the reason assigned by them in their answer, void or not, as the premises were re-conveyed to him, by deed, executed by James L. and wife, before they filed their answer. That the conveyance from Joseph S. to James L., was fraudulent and void, as against the complainant, is evident. On this point, the admission of the defendants in their answer, that there was no passing consideration for the conveyance — that the grantee took no p'ossession of the premises — and that the grantor continued to receive *474the rents, furnishes at least, prima facie evidence, that the conveyance was in fact fraudulent. But the testimony of Johnson and Jewell is conclusive. ■ They both testify that the deed was executed for the avow- . ed purpose of preventing the collection of the notes upon which the complainant recovered his judgment. That on the application of one of these witnesses, to purchase the farm, in presence of the other, both .of the defendants admitted that such was the object of the conveyance, . and that there was no other consideration for it. Neither of the witnesses are in any manner impeached, or their testimony controverted. That deed, therefore,” upon this ground alone, must be adjudged fraudulent and void.
By the answer, a special defense is interposed by Joseph S., as to forty ■ acres of the land. It becomes necessary, therefore, to examine and determine the merits of this question. He alleges that he removed from Genesee county upon the premises with his family, designated forty acres of the farm as a homestead, and gave the sheriff' notice of such designation, and that he claimed" so much of the land levied on, to be exempt from sale under the execution. These, allegations are not responsive to anything contained in bill, and ño proofs appear by the transcript to have been taken in support of them. But, by a single glance at the pleadings and proofs, suspicion is at once thrown over the whole ground of this special defense. There is an appearance of dishonesty upon the very face of it. The facts are, as presented by the case, that after the levy of the execution and filing the bill, the defendant, Joseph 8., procures the re-conveyance, moves upon the premises, designates the forty acres, gives the sheriff notice, and then answers the bill, setting up 'these facts as his special defense. From them, it may fairly be inferred that he became satisfied that his conveyance of the premises to James L,, would not stand before a legal investigation; hence, conceived the idea of protecting, if possible, forty acres of the land from sale, under the statute exempting homesteads, and therefore resorted to these rapid and successive movements for that purpose, before answering the bill, which appear more like movements in continuation of his original fraudulent intent, than they do like those of honesty and fair dealing. But independent of this view of the subject, is he legally entitled to the exemption claimed? The statute provides, “that a homestead, consisting of *475any quantity of land not exceeding forty acres, and the dwelling house thereon, &c., owned and occupied by any resident of this State, shall not be subject to forced sale on execution,” &c. (S. L. 1848, p. 124, § 1.) At the time of the levy, and for some time after the bill was filed, Joseph S., the defendant in the execution, was not the owner or occupant of the premises. He had conveyed them to James L., and was a resident of another county, and by. the provision of the statute, which is clear and express, he cannot legally claim such exemption, unless he was both owner and occupant; such being the express condition upon which the law protects a debtor, in the enjoyment of his homestead. On the argument of the cause, it was contended on the part of the defendants, that Joseph S. was legally entitled to the exemption sought, under the provision of the third section of the act referred to. This position, however, is untenable. By no legitimate construction of the language of this section, independently, or in «connection with the other sections of the act, does it provide for a different class of exemptions than those provided for jn the first section ; but provides merely, that where the homestead has not been selected and set apart before the levy, it may be designated by notifying the officer at the time of making the levy, of what he regards his homestead, clearly having reference to the homesteads exempted by the first section. It was also contended that it was the intent of the Legislature by the. act, to protect the wife, especially, in the use and enjoyment of a homestead; that the conveyance of Joseph S., not having been executed by his wife, was ■void, and therefore, she still entitled to protection in this case. This position again, is unsound. The conveyance being void by reason of not having been executed by the wife,' cannot have the effect to change the provision of the statute,' or the'facts in the case. It is the homestead owned and occupied by the citizen,, that is protected; and neither at the time of the levy or at the time of filing the bill, were Joseph S. and wife, or either of them, the owners and occupants of the premises in question. But if the facts were otherwise, and the wife had an equitable interest in a homestead, selected, or to be selected from the premises, it could not be adjudicated and settled here, in this cause. The wife is not a party in this - suit; and if in fact, she has such an interest, which does not appear by any evidence in this cause, she should have *476joined, with her husband, and brought it up before the Court by a cross bid.
As to the deed of conveyance executed by Joseph S. to James L., being ipso jwre void, on the ground of not having been executed by the wife, it is a question which it is not necessary to determine in this case.
No errors appearing in the case, the decree of the Court below must be affirmed with costs.