Stanton v. Hitchcock

Campbell, O. J. In this case the controlling facts found are these: In 1873, Thomas J. Hitchcock came to Michigan, leaving behind him, in New York, a wife, Caroline Hitchcock, and two minor children. The wife knew of his coming, and expected at some time to join him, but was never in Michigan. In March, 1875, Hitchcock bought a vacant lot, and subsequently built on it. Whether he began to build or not before his second marriage does not appear, but the house was finished thereafter. In December, 1875, he, without divorce from his previous wife, married defendant, who married him in good faith, supposing him to be single. After the house was built, they moved into the house, and had children, who, with the parents, lived in it as their home till he died, when the second wife became owner by conveyance from Hitchcock, unless void by reason of the claims of the former wife to a homestead interest in it. None of the first family ever lived in the house, except that a son, aged then about 18, came and was received as a member of the household, until dismissed for ill-treating the children of the second wife. It appears from the finding that the first wife never lived in Michigan, and, of course, never lived in the house; that [319] Hitchcock never made or proposed to make it a home for their common occupancy; that it was intended for and actually occupied by the second wife and family, and so always ■continued. The question, then, is whether it ever became the first wife’s homestead. That is the only question. ' That Hitchcock was guilty of wrong is clear enough. But whether the fact of his wrong-doing changes the character of the occupancy of the house is quite another question, which must be decided as a ■question of fact, and not as one of propriety. The inquiry is not what he ought to have done, but what he did. The object of the Constitution is not ambiguous. It is to protect that dwelling which has been the actual home of the family from such disturbance as will make them lose its enjoyment. It is confined, by its language, to the property actually occupied as a homestead by a resident of Michigan; and, if the owner has a family, it is the actual home of that family which is protected from seizure by creditors. There is nothing in the statute which contemplates that a wife who has never lived on the premises, or claimed to live there, may, after her husband’s death, claim such an interest by relation as will avoid his dealings with property which he never meant should be the home of the absentee, however much he may have wronged her. The .statute which, after a husband’s death, secures rights to a widow, is confined expressly to resident widows. Under our legal regulations, no imaginary or imputed intention can supplant the actual intent. It would be little short of absurdity to hold that Hitchcock could at the same time contemplate the occupancy of the house as the home of his second wife and also of the first. This is not pretended by any one. It appears expressly that it was the actual and continued home of the second wife and family, and that all the domestic arrangements and purposes were with this in view. The first wife never contemplated it as her and her [320] husband’s joint home, and would, no doubt, have repudiated any such idea. After this marriage the first wife had no purpose of living with him at all. She never looked upon or used or sought it as a home, and never got the homestead rights of a surviving widow in it. The only right now set up is the right to have the disposition of it made by the-husband avoided for want of her signature. We have held, and I think rightly, that, where a wife has-once had her home with her husband in his dwelling, he cannot deprive her of that vested right by driving her out. But here the home interest never vested. JThe law was made to protect actual homes, and not mere possibilities, — still less to-change by theory into a home that which is actually the reverse. In the present instance the second wife was made so in good faith, and had some natural equities in the premises which would not probably have been legally recognized without the conveyance. But if the case had been worse, and the house occupied by the husband in a life of shame and indecency, it would, I think, be a very singular rule of law which would protect it as a homestead, and treat it as a home, and especially the home of the absent wife. The occupancy is one which she actually repudiated, and which, in the absence of any showing, she wloud be presumed to repudiate, and she could not decently do otherwise. But to hold it to have been her home in the eye of the law, when she purposely and very properly determined to reside elsewhere, is not, I think, to carry out the great and worthy purposes of the homestead laws. It must be remembered, not only that the character of any property as a homestead depends on intention, but that it may be entirely destroyed by a removal of residence. There is nothing in the law to prevent such removal at any time, and after it the property stands, like any other property, liable to sale or any other disposal by the owner at his pleasure. Under our laws the sale by a husband whose wife is non-resi [321] dent carries the property free from any right of dower. Actual non-residence in such case, in spite of the marital relation, cuts off any control over the sale of a complete title. There is as much reason for the confinement of the homestead law. Marital rights are mutual. The State of Michigan, had Hitchcock never married defendant, could not have aided him in compelling his wife to join him, or exercised any control whatever over the persons or conduct of the absent children. It might divorce the parties for the wife’s desertion, but it could not regulate their family relations while not divorced. Until divorced, if the first wife could, in the present instance, prevent the sale of the house, she could just as well do so while actually doing all she could to make a family home impossible. Her merits in the one case, or demerits on the other, would not count at all in the decision. The law would be grossly tyrannical if it tied the husband’s hands in the one case at least, and it cannot be possible that such consequences could have been designed by the Constitution. It 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 non-re'sidents which could not, under any circumstances, be of any use to them personally. I think the judgment should have been given for the defendant, and that it should be reversed, and so . entered, and the record remanded. Sherwood, J., concurred.