Deville v. Widoe

Sherwood, J. The bill in this case is filed by the com [594] plainant, and prays that a certain execution levy upon his house and lot, situate in Grand Rapids, may be set aside and declared void, for the reason that at the time of the levy the property consisted of one lot worth less than $1,500, and was his homestead. The case was heard in the Kent circuit, before Hon. Robert M. Montgomery, circuit judge, upon pleadings and proofs, and a decree was made granting the relief prayed. After a careful inspection of the record, I have no doubt of the correctness of the conclusion reached by the learned circuit judge. The following facts, I think, are sufficiently established by the pleadings and proofs in the case: The complainant purchased the lot in question, which was then vacant, and which was about 47 feet wide, on Plainfield avenue, of Charles W. Coit, on the twenty-fourth day of October, 1881. He has never owned any other real estate since. The lot contains about an acre, consisting of part of a platted lot, and was located, when bought, in a thickly-settled district, — residence property mostly on either side of it. When the property was sold to the complainant, the vendor understood it was for a homestead, and the complainant purchased it with the intention of making it his homestead, as well as a place upon which he could carry on his business, which was selling meat. He paid $800 for the lot, — paid $200 down, and gave a mortgage upon the property to secure payment of the balance, —and commenced improving the lot November 10 after the purchase. At the time of the purchase he was engaged in carrying on a meat-market on the same street, near the property. His ground-lease having expired, he moved the little shop in which he was doing business onto his own lot, placing it about 50 feet back from the street. His plan, however, was to erect a building on the front of his lot sufficiently large and suitable for carrying on his little meat business, and fur [595] nish him a comfortable residence for bis family; and very soon after taking possession of bis lot, in tbe month of November, be made an unsuccessful effort to raise tbe money to build such a building. He then decided to erect so much of tbe building as would be necessary for bis business purposes, and in such manner that he could thereafter add thereto tbe part he bad intended for the residence of bis family when be could get tbe necessary means. This be did, and in January following built an ice-house on the lot for the use of bis market and family, and in November, 1882, built a barn upon tbe premises for tbe accommodation of tbe horse be used in his business. In this condition the complainant used the property during tbe year 1883, making several efforts, however, during tbe year, with one or more parties, to negotiate a contract for building tbe residence in connection with his market as hereinbefore mentioned. He did not succeed in making tbe arrangement for putting up tbe addition to bis building, which was to constitute tbe apartments and home for bis family, until tbe month of July, 1881, when be made a contract for tbe lumber, and dug a cellar for tbe building. Tbe party who furnished the lumber for tbe completion of tbe building commenced delivering it upon tbe ground on the second day of August, 1881, and tbe building was completed, and tbe complainant moved into it, with bis family, a few months thereafter. After tbe building was completed, tbe assessor valued tbe property at $1,000. From tbe time the complainant took possession of the property until be moved bis1 family into tbe building, be occupied tbe property himself. He used the building first erected for bis meat-market, fenced tbe lot, and raised upon it vegetables for bis family, and some feed for his horse, and, so far as we can discover from tbe record, designed tbe property for his homestead, and so expressed himself in regard to the property whenever be bad any con [596] versation upon the subject of its improvement, or whenever any person, in like circumstances, would be likely to give-expression to his intentions. On the sixth day of August, 1884, defendant held a judgment in his favor against the complainant, and caused the-same, on that day, to be levied upon the property. Some time after the levy was made, complainant notified defendant that the property levied upon was his homestead, and asked him to release and discharge his levy. This defendant refused to do, claiming that the property was not complainant’s homestead, and instructed the sheriff to proceed with his levy, and advertise and sell the property, who proposed to obey the instruction of defendant; and thereupon the complainant filed this bill. The only question in the case needing consideration is, was-the property the complainant’s homestead ? There can be no question, if it was, but that the defendant’s levy clouded the complainant’s title. We think it was shown to be within the constitutional limit as to size and value. It was incumbered by mortgage at the time of the levy to the amount of about $478; and it sufficiently appears that, as fast as' the-complainant was able, he improved the property, with a view of making it his homestead, and had really commenced the-erection of that portion of the building which he designed for, and which, as soon as completed he occupied for, the-residence of himself and family. W'e have no doubt about the good faith in which all the improvements were made, and-under such circumstances it would be, in our judgment,, inequitable and .unjust to attempt to divest the property of its homestead character. We think the case falls clearly within the spirit of the Constitution and statute providing for the exemption of a homestead, and the decisions of this Court made thereunder. A city lot purchased with the intention of making it a homestead for the purchaser and his family will be exempt [597] from levy and sale on execution from the time of purchase, even though unimproved and without a dwelling thereon, if the purchaser encloses it and uses and occupies it with the constant purpose of making it his home, and uses the proceeds thereof, and such means as he can procure, within a reasonable time, to erect a house thereon for his family, provided it does not exceed in quantity and value the constitutional limit. What will be regarded as a reasonable time must necessarily depend upon the circumstances of each particular case. The following authorities will be found to give support to the views herein expressed: Reske v. Reske, 51 Mich. 541; Barber v. Rorabeck, 36 Id. 399; Bouchard v. Bourassa, 57 Mich. 8; Griffin v. Nichols, 51 Id. 575. See, also, Scofield v. Hopkins, 61 Wis. 370 (21 N. W. Rep. 259). We do not think, under the circumstances of this case, that the time taken by the complainant to improve the lot, in such manner as to make a comfortable home for himself and family, was unreasonable; and the decree of the circuit judge must be affirmed. Campbell, O. J., and Champlin, J., concurred. Morse, J., did not sit.