The question involved is the right of defendants to an exemption.
In Beecher v. Baldy, 7 Mich. 488, it was said:
"It is the land, including the dwelling-house and appurtenances, and constituting a homestead in fact, owned and occupied by the debtor, and nothing else, which the Constitution exempts. And to bring it within the designation of a homestead, which the Constitution, of its own force, exempts, it must possess all the descriptive features of the homestead described in the Constitution as exempt. These are as follows: 1st. It must contain the dwelling-house and its appurtenances, without which it could not be a homestead in fact, under any definition. 2d. It must not exceed the quantity limited by the Constitution. 3d. It must be owned by the party claiming it. 4th. It must be occupied by him as a homestead; and 5th, it must not exceed in value $1,500. The last requisite is just as much a matter of description as *Page 131 either of the others. * * * If, * * * when reduced in quantity as far as divisible, * * * it still exceeds the specified value, it is not one of the homesteads, the forced sale of which is prohibited by the Constitution; and cannot, therefore, be exempt by the operation of that instrument alone. The Constitution has exempted a homestead of a certain description. Where the homestead does not answer this description, it is competent for the legislature to exempt something out of it, or in lieu of it, as an equivalent in value."
In that case there was involved the question of the application of the constitutional provision of 1850 (art. 16, § 2) to the statutory exemption fixed by Act No. 109, § 1, Laws of 1848, which provided:
"That a homestead, consisting of any quantity of land not exceeding forty acres, and the dwelling house thereon and its appurtenances, to be selected by the owner thereof, and not included in any recorded town plat or city or village, or instead thereof, at the option of the owner, a quantity of land not exceeding in amount one lot, being within a recorded town plat or city or village, and the dwelling house thereon and its appurtenances, owned and occupied by any resident of this State, shall not be subject to forced sale on execution, or any other final process from a court, for any debt, or debts growing out of or founded upon contract, either express or implied, made after the third day of July, A.D. 1848."
The court was particularly interested in the limitation placed by the Constitution upon this statute. It was said:
"Under the statute, the property described was exempt without reference to its value, and under it the debtor might withhold from his creditors property worth a hundred thousand dollars or more." *Page 132
The Constitution of 1850, art. 16, § 2, limited the exemption to homesteads not exceeding in value $1,500:
"Or instead thereof, at the option of the owner, any lot in any city, village, or recorded town plat, or such parts of lots as shall be equal thereto, and the dwelling house thereon, and its appurtenances, owned and occupied by any resident of the State, not exceeding in value fifteen hundred dollars, shall be exempt from forced sale on execution, or any other final process from a court, for any debt contracted after the adoption of this Constitution."
The statute (3 Comp. Laws 1929, § 14608 [Stat. Ann. § 27.1572]) provides for the exemption of "a quantity of land not exceeding in amount one lot, being within a recorded town plat or city or village, and the dwelling house thereon and its appurtenances, owned and occupied by any resident of this State, not exceeding in value fifteen hundred dollars." This statute says nothing of hotels, multiple dwellings or flats. It covers exemptions. If the land, dwelling house and its appurtenances are worth more than $1,500, it is not a homestead within the constitutional definition. The Constitution has exempted a homestead of a certain description. Where the homestead does not answer this description, it is competent for the legislature to exempt something out of it, or in lieu of it, as an equivalent in value.
In Dyson v. Sheley, 11 Mich. 527, where the parties built a double house, one part of which had been used and occupied by tenants for several years, it was held the homestead exemption was designed to protect the owner of the property in its use as a dwelling and that it had no application to the land which was leased to another. The law does not exempt property to the amount of $1,500, whether *Page 133 designed as a homestead or not. It merely covers so much as comes within that designation, although worth but a trifle.Its object is to preserve the home, and no more.
In Orr v. Shraft, 22 Mich. 260, Shraft and wife occupied the upper story of the building. The court held the building was not occupied exclusively as a dwelling, but was occupied as a homestead. The lot and building were worth about $1,000, and the right to an exemption other than that based upon the wife's occupancy was not raised.
In King v. Welborn, 83 Mich. 195 (9 L.R.A. 803), the building was occupied by petitioner's family conducting a hotel therein. The question was whether he was entitled to an exemption. Defendant insisted the statutory exemption was limited to one lot, and that this property covered two lots; hence, no homestead could be claimed without a selection and designation of some portion as such. But the court, in passing upon this question, said:
"One who has constructed his house, which he occupies as a homestead, upon two lots, is not thereby to be deprived of his exemption. If the property comprising his homestead is worth more than $1,500, the statute provides a way by which he may receive the value of his exemption, and his creditors the balance to apply on his debts."
In Lamont v. LeFevre, 96 Mich. 175, the property was built on two lots. A bill was filed to foreclose a lien. The court said these parcels should be treated as one, and the lien attached to both. Mrs. LeFevre claimed rights to a homestead in the premises. The court held that, to the extent of $1,500, it was exempt from the lien, and "beyond that sum the lien attaches, and, as the premises cannot be divided, a sale affords the only means of reaching the excess." *Page 134
In Fitzsimons v. Kane, 245 Mich. 246, the bill sought to subject the land of Georgia Kane to sale under execution, and "the proofs disclosed that she occupied the premises as her home. If the owner of property makes such property his home in fact it is his homestead, needs no formal declaration as such, and judgment creditors must recognize its character and respect its extent. * * * The fact that she occupied the premises as her home constituted notice to plaintiff of the homestead character, and was evidence in and of itself of election to have homestead rights. * * * Under a bill in aid of execution, the court has power and the duty to protect the homestead right, even if the subject matter is not presented until the decree is being reduced to form."
The statute of 1861, passed after Beecher v. Baldy, supra, was decided, provides:
"Whenever the homestead of any debtor in any such case, shall exceed in value the amount of fifteen hundred dollars, the debtor shall not for that reason lose the benefit intended to be secured to him or her by this chapter; but in all such cases, when in the opinions of the creditors or officer holding an execution or decree as aforesaid, against such householder, the premises claimed by him as exempt are worth more than fifteen hundred dollars, such officer shall summon six persons qualified to act as jurors, who shall upon oath, to be administered to them by said officer, appraise the said premises; and in case the value thereof shall be more than fifteen hundred dollars, and cannot be divided, they shall make and sign an appraisal of its value, and deliver the same to the officer, who shall deliver a copy thereof to the debtor, or to some of his family of suitable age to understand the nature thereof, with a notice thereto attached, that unless the said debtor shall pay the said officer the surplus, over and above the fifteen *Page 135 hundred dollars, or the amount due on said execution or decree, within sixty days thereafter, that such premises will be sold." 3 Comp. Laws 1929, § 14615 (Stat. Ann. § 27.1579).*
The statute further provides:
"In case such surplus, or the amount due on said execution or decree, shall not be paid within the sixty days, it shall be lawful for the officer to proceed to advertise and sell the said premises, and out of the proceeds of said sale to pay such debtor the said sum of fifteen hundred dollars, which shall be exempt from execution for one year thereafter, and apply the balance on said execution: Provided, however, That no sale shall be made in the case last mentioned, unless a greater sum than fifteen hundred dollars shall be bid therefor, in which case the officer may return said execution for want of property, or report the facts to the court in which said decree was rendered, as the case may require." 3 Comp. Laws 1929, § 14616 (Stat. Ann. § 27.1580).
I agree with Mr. Justice McALLISTER.
BUSHNELL, C.J., and CHANDLER and WIEST, JJ., concurred with POTTER, J.
* The section above quoted is Act No. 314, chap. 23, § 80, Pub. Acts 1915 (the judicature act), which had substantially reenacted section 2 of Act No. 248, Pub. Acts 1861, amendatory of Act No. 109, Pub. Acts 1848, the only change being from "said chapter and act" to "this chapter" in the fifth line. — REPORTER.