This was á bill to foreclose a mortgage (executed by the defendant to the complainant) of a certificate of purchase of forty acres of University land (which for the purposes of this case may be treated as a mortgage upon the land itself), to secure the payment of two thousand two hundred and sixty-five dollars, in three equal annual installments, at ten per cent, interest, to be paid annually. The mortgage was dated January 16, 1861.
The defendant, by his answer, relies upon two separate grounds of defense;
*86First: That he was a married man; that his wife did not join in the mortgage, and that the land was his homestead, and exempt as such from sale on the mortgage; and,
Secondly: That he also, at the same time and to secure the same debt, executed to the complainant a chattel mortgage upon a nursery of fruit trees, shrubbery and vines then growing on said lands, and upon certain other fruit trees, shrubbery and vines then growing upon other lands. And he alleges that in March, 1862, the complainant took possession of the land described in said certificate, and had the use, occupation, rents and profits of the same, for which he asks that complainant may account. That defendant entered the army of the United States in the fall of 1861, and continued in the army at the time of his answer, (July, 1864.) That complainant also took possession of said trees, shrubbery, and vines, and forbid the agents of defendant from cultivating, or having anything to do with them; that he wrongfully and intentionally neglected and refused to take care of, trim, and cultivate said trees, shrubbery, &c., by means of which they were greatly damaged, and lessened in value to the amount of three thousand dollars; that complainant sold the trees, &c., under said chattel mortgage for about one hundred and fifty-three dollars, being less than one twelfth part of their value; claims that such damage should be ascertained by proof, and credited and allowed to him, and alleges that complainant is indebted to him in the sum of twenty-three dollars for farming and gardening tools, which he asks may be allowed in set off.
A replication being filed, evidence was taken on both sides, and the case brought to a hearing upon pleadings and proofs. The Circuit Court 'dismissed the bill without costs, and “without prejudice in any action at law hereafter to be instituted by said complainant against said defendant:” and the case comes to this Court by appeal from this .decree.
*87TJpon what ground the bill- was dismissed does not expressly appear.
First: As to the defense of a homestead, we see no ground upon which this defense can be maintained. The most that the evidence shows is that the defendant contemplates, at some future time, building a dwelling house upon the land and going there to reside with his family. But it expressly appears from the evidence that no dwelling house had ever been erected or even commenced upon the land, and that neither the defendant nor any of his family had ever resided upon it.
Neither the Constitution nor the statute has undertaken to exempt a merely contemplated future homestead. Both leave the parties first to make or obtain a homestead in fact, and then apply the exemption to the homestead thus acquired. Neither has undertaken to furnish homesteads, or the means of obtaining them, to those who have none. And as held by this Court in Beecher v. Baldy, 7 Mich., 501, the land which is to be exempted as a homestead must contain the dwelling house, and must constitute a homestead in fact.
Secondly: As to the other grounds of defense set up in the answer, while the evidence shows that there were certain sums received for which he should account, and which should be applied in reduction of the mortgage debt, it wholly fails to show that the complainant had prevented the defendant or his agents from properly cultivating, trimming and taking care of the nurseries; and in- all respects it fails to establish a complete defense, or to show any proper ground for dismissing the bill. And we are satisfied this part of the defense set up by the answer was never passed upon by the Court. And the case being clearly one of equitable cognizance, we can see no ground upon which the Court could have dismissed the bill, unless upon the erroneous view that the evidence established a homestead exemption. Such we think must have been the view taken by the Court.
*88The evidence presents a case in which an account should be taken, and we should not feel authorized without a reference for that purpose to determine upon this appeal, the amount which should be allowed to the defendant in reduction of the mortgage debt. Iu determining this amount several questions may be raised, and some of them have been argued by the defendant’s counsel; but the counsel for the complainant, from' the view they have taken of the case, have not deemed it necessary to argue them. We might perhaps determine some of these questions, and lay down some of the principles which should govern the accounting. But as we are satisfied this part of the case has not yet been considered by the Circuit Court, we think it better to leave all questions touching the account and the sums to be allowed to the defendant, to be first adjudicated in that Court.
The decree dismissing the bill must be reversed with costs, and an interlocutory decree of foreclosure and sale must be entered in this Court, and the case must be remitted to the Circuit Court for such further proceedings as may be necessary for stating an account between the parties and ascertaining the amount to be allowed to the defendant in reduction of the mortgage debt, and for making the decree final and carrying it into effect.
The other Justices concurred.