Brown v. O'Donnell

Grant, J. (after stating the facts). The court instructed the jury, in accordance with the stipulation, that, if there was no homestead, plaintiff was entitled to a verdict for the whole amount; if there was a homestead, [102] plaintiff was entitled to a verdict for tbe 40 not claimed as a homestead. While various statutes require separate tracts or parcels of land to be sold separately on judicial sales, we have uniformly held that such sales are voidable only, and not void, and cannot be attacked in collateral proceedings. Rhode v. Hassler, 113 Mich. 56 (71 N. W. 461), and authorities cited. But the main contention now is that the sale is absolutely void, because one parcel was a homestead. Counsel for plaintiff assert that this question was not raised in the court below, and therefore cannot be urged here. The case was submitted to the jury upon the stipulation made at the close of the proofs. Defendant’s counsel preferred no request. If counsel desired to present the question in this court, he should have raised it in the court below for adjudication. It cannot be raised here for tbe first time. It is a fair inference from the record that no such issue was there made. The question is an interesting one, and has never before been presented to this court. We do not, however, feel called upon to determine it upon this record. Under the issue presented to the court below, defendant obtained judgment for all the land to which she was entitled. Other questions are raised, but we do not consider them of sufficient importance to discuss. We find no error in them. Judgment affirmed. The other Justices concurred.