Leonetti v. Tolton

Potter, J. I dissent from the opinion of .Mr. Justice McDonald. The deed claimed to be invalid for want of the wife’s signature was executed by the husband April 18, 1929. At that time his wife was in Italy. She had never been in America, though she intended to join her husband here and did so October 23, 1929, six months and five days after the deed was executed. It is claimed she had a homestead interest in the lands deeded six months and five days before she even saw them, when she *624 was living in Italy, where she had always lived np to that time. She had no homestead interest in the real estate deeded. The homestead statute applies only to property “owned and occupied by any resident of this State.” 3 Comp. Laws 1929, § 14608. Exemptions are a matter of local State policy, to encourage the comfort and industry of the people, and do not exist for the benefit of the persons resident in other jurisdictions. McHugh v. Curtis, 48 Mich. 262. The homestead law of this State— “was designed to protect those who had subjected themselves to its laws, and acted in reliance on them, but not to treat as homes what are not homes, or give powers to nonresidents which could not, under any circumstances, be of any use to them personally.” Stanton v. Hitchcock, 64 Mich. 316 (8 Am. St. Rep. 821). In Black v. Singley, 91 Mich. 50, plaintiff claimed under a deed from Abner Moore. Defendants claimed the deed was void because Moore’s wife had not joined in the conveyance. Moore came to Michigan and lived here many years. His wife lived separate and apart from him in Pennsylvania. It was held she was not entitled to homestead rights in the lands acquired by him in this State. “The husband and wife, living separate and apart under circumstances such as these, might each claim a homestead, the one in Pennsylvania and the other in Michigan, but neither could claim both.” In Hall v. Marshall, 139 Mich. 123 (111 Am. St. Rep. 404), the Wife sought to avoid a real estate mortgage by the husband upon the ground the property mortgaged constituted a homestead, and she had not signed the mortgage. It is said: “The evidence is that she had not at the date of this mortgage lived upon the premises. She had *625 never seen them at this time, and did not see them for years afterwards. She continued to reside in Ohio, and for years bore her maiden name. During all the years prior to Mr. Marshall’s death she never visited Detroit but once. * * * She testifies that she then declared to her husband that she intended to remain in the house, but yielded to persuasion and left, returning to her home in Cincinnati. We think these facts bring this case clearly within the holdings in Stanton v. Hitchcock, 64 Mich. 316 (8 Am. St. Rep. 821), and Black v. Singley, 91 Mich. 50. The defendant had not, before the date of the mortgage, so occupied these premises as to entitle her to claim homestead rights as against one who was ignorant of her marriage. ’ ’ “Is a nonresident entitled to the benefit of the exemption? That question cannot be regarded as an open one in this State. It was decided in McHugh v. Curtis, 48 Mich. 262, that the exemptions given by our laws are personal privileges which cannot be claimed by nonresidents of this State.” Kelson v. Railway Co., 146 Mich. 563 (10 Ann. Cas. 500). “It seems to be the settled law of this State that a wife living separate and apart from her husband in another State has no homestead right in her husband’s lands in Michigan.” Standard v. Jewell, 206 Mich. 61. “Residents of the State only are entitled to the benefit of the homestead exemption created by its laws, whether these laws expressly limit it to residents or not. Mere intention to become a resident and to abandon a residence in another State does not give to a person the right to claim the homestead exemption.” 29 C. J. p. 792. “No homestead right can be acquired by an alien whose family had never resided within the State, but lived in a foreign country.” 13 R. C. L. p. 564, *626 The grantor’s wife may have intended to come to Michigan, bnt to constitute a change of residence, under the circumstances, there must have been a concurrence, not only of the actual intent upon her part to abandon her residence in Italy and acquire her residence in Detroit, but there must have been a carrying out of that intention by her actual removal from Italy to Detroit. The fact and the intent must concur. Beacher v. Common Council of Detroit, 114 Mich. 228; Rue High, 2 Doug. 515; 19 C. J. pp. 401-410. The deed was valid when made, and cannot be rendered invalid by the subsequent action of the wife. Decree is affirmed. Sharpe, North, Fead, Wiest, and Butzel, JJ., concurred with Potter, J. Clark, J., took no part in this decision.