Davis Sewing Machine Co. v. Whitney

Campbell, O. J. .Plaintiff, on the twenty-fourth day of February, 1881, sued defendant as a non-resident, by attachment, which it is claimed was levied on village lots 199 and 200, in Portland, Ionia county. No certificate of this levy was ever filed in the register’s office. Notice was published and judgment entered for non-appearance on the second of August, 1881, and the property was sold in September, under public protest on behalf of defendant and wife. On [520] the twenty-first of December, 1882, the sheriff conveyed the property, the statutory period of redemption having run out. Plaintiff then brought ejectment, and was defeated below for reasons arising out of the homestead exemption laws. The property had for some years — from 1870 to 1879— been occupied by defendant and his wife as a homestead. It was worth less than half the amount allowed for exemption. The size of the lots is not given. The house stood partly on one and partly on the other. In 1879 the owner and his wife left Michigan, as is claimed, to try the effect of some other place on her health, and lived and kept hotel in two different places in Illinois. In 1880 defendant corresponded with his Portland agent on the subject of coming back to live in the house. In the spring of 1881, soon after the attachment suit began, they returned, and went back into the house, and have since lived there, claiming it as a homestead. The court below instructed the jury, in substance, that if they went away with the intention of returning, and always meant to retain their homestead interest, a homestead might exist; and also that if the wife and husband, at the time of ejectment brought, claimed and occupied the land as a homestead, the wife should be joined as a defendant. Notice of the homestead claim was publicly given at the sale on execution. Under the circumstances of this case, where there is no doubt of the character of the family occupancy, the necessity of bringing in the wife has been recognized by our decisions. Cleaver v. Bigelow, 61 Mich. 47. This is fatal to the present case, and was so held below. But a point was raised on the argument which will be as applicable in any future trial as now, which meets us in the outset. There being no personal service of the attachment, the judgment could only be good against the property attached. Prior to 1875 the method of levying an attachment was the same as that of levying an execution on land, and did not require the filing of the lien as'a condition precedent to its attaching, although it had to be filed within three days to make it date from the levy. Comp. Laws 1871, [521] § 6406. But in 1875 the section was so amended as to read as follows: “ Beal estate attached shall be bound, and the attachment shall be a lien thereon from the time when a certified copy of the attachment, with a description of the real estate attached, shall be deposited in the office of the register of deeds in the county where the real estate attached is situated.” How. Stat. § 7995. A previous section had dispensed with any entry, or other public act, in making the levy. This language differs from that concerning levies of execution, where the deposit of notice of levy is only made necessary as against subsequent conveyances, in good faith: How. Stat. § 6173. As against all such rights, the notice filed must be definite and certain: Campau v. Barnard, 25 Mich. 381; Ward v. Citizens’ Bank, 46 Id. 332; Burrowes v. Gibson, 42 Id. 121. This difference is significant. Unless such a notice is filed, there may be no other means whereby even the parties themselves may be notified; and where an attachment levy on lands is the only ground of jm’isdiction, it is certainly important that it should be fixed beyond any doubt or change. The change in the statute must have been intended to serve some useful purpose. Hntil there is a lien on the land there is nothing to authorize a court to proceed to judgment. The statute of 1875 provides that there shall be no lien until it is made ascertainable in the county registry. It does not require the notice to be filed at any particular time, but it makes the filing the condition for the establishment of the lien. It was held in French v. De Bow, 38 Mich. 708, that the object of filing the paper in the register’s office is not to give notice to third parties, but to fix the lien. And, on the other hand, it was held in Avery v. Stephens, 48 Mich. 246, that, when a lien by attachment has once become operative, a subsequent taking of possession for a homestead will not defeat it, although no provision is made for ascertaining the homestead right till execution is sued out. When these parties resumed possession of their land as a homestead there was no existing lien upon it, and therefore522 there was nothing in the way of the subsequent homestead occupation, as there was no foundation for the judgment in* rem, for want of a valid lien. "We do not think it necessary, therefore, to consider the-rulings on the continuance of the original homestead right after the interruption of possession. We do not, however,, mean by this to suggest anything against them.1 We think the record shows that the judgment should have-been rendered as it was, and it must be affirmed, with costs. As under the statute there may be a new trial upon certain conditions, the record must be remanded. Champlin and Sherwood, JJ\, concurred. Morse, J., did! not sit. Footnotes [1] See “Homestead,” 60 Mich. 687-8, for valuable cases on the question of abandonment of homestead, its selection, etc.