Fox v. Brannan , 292 Mich. 126 ( 1940 )

It is fundamental that the right to a homestead given by the Constitution and by statute is to be liberally construed. See authorities collected in 114 A.L.R. 209. That right, however, is limited to property occupied by the homestead claimant — the law requires that there be both ownership and occupation by the homestead claimant. Wisner v. Farnham, 2 Mich. 472;Beecher v. Baldy, 7 Mich. 488; Hersehfeldt v.George, 6 Mich. 466 ; Fitzsimons v. Kane, 245 Mich. 246. In Dyson v. Sheley,11 Mich. 527, it was held that a levy could properly be made on the half of a double house that was occupied by a tenant although the homestead claimant owned the entire building and claimed a homestead interest therein. Justice CAMPBELL said:

"Under our Constitution and laws a homestead, in order to be exempt, must be 'owned and occupied' by a citizen of this State. This language clearly implies that the premises must have been set apart as a home, and for the purposes of the owner or his family. It is not necessary in the case before us to inquire whether land thus set apart may or may not be leased temporarily nor whether, if all the land claimed is covered by a dwelling used by the family, separate stories over or under their domicile may not be used or rented for other purposes. The cases deciding these points, to which reference was made on the argument, are not applicable to the case before us. Here the complainant built upon his lot in such a way as to show he designed it for two families, and not for one. The portion levied on has been leased for several years. It is plain that this portion could never have been properly regarded as a homestead. The law does not exempt property to the amount of $1,500, whether designed as a homestead or not. It merely covers so much as comes within that designation, although worth but a trifle. Its object is to preserve the home, and no more."

In Fitzsimons v. Kane, supra, the issue of limiting the claimant to the flat actually occupied in the duplex was not raised. It does not, therefore, overrule Dyson v. Sheley,supra. Defendant relies upon Orr v. Schraft, 22 Mich. 260; King v. Welborn, 83 Mich. 195 (9 L.R.A. 803), and Lamont v.LeFevre, 96 Mich. 175. In all three cases the buildings were actually occupied by the homestead claimants. In Orr v. Schraft, supra, the upper floor of the building was occupied by the homestead claimant for living quarters, while the lower floor was used by him for a postoffice and some other official business purposes. In King v. Welborn, supra, the building in question was a small hotel in which the homestead claimant lived and conducted a hotel business. It was held that hotel keepers were not to be denied the benefit of the exemption when they owned and occupied the land with their families and had no other home. Lamont v. LeFevre, supra, was somewhat similar and the decision was based upon King v.Welborn, supra. The foregoing opinion relies in part upon In reRobison, 215 Fed. 662, also a hotel case. I do not think such cases should control the facts before us now.

In a leading case in Iowa, Rhodes v. McCormick, 4 Iowa, 368 (68 Am. Dec. 663), it was claimed that an entire three-story building was exempt. The first floor and cellar were rented as a store. The second floor had previously been rented by a physician but was occupied together with the third floor by claimant at the time of suit. The court said:

"A defendant cannot, by calling a house a homestead, make it such. He cannot, by occupying or using one room in a building containing forty, exempt the entire premises. Neither can he, by using all the rooms of the second and third stories as a homestead, exempt from liability the storerooms that may be below, but which have no kind of connection with the homestead as such. What particular part of a building is in fact used as a homestead — as the place for the family — as the house, — is, as a general thing, easily ascertained. It is such parts as are thus used in good faith, that the law designs to exempt. The parts are the 'house' within the meaning of the section of the code, which provides that 'the homestead must embrace the house used as a home by the owner thereof.' But it is not to embrace all parts of a building which are not used as a home. All such parts, not thus used, are no more included within the homestead home, than if they were in different buildings. Those portions used as a home, when ascertained, are to be treated as a house, having a separate locality, disconnected from the other parts of the building."

The difference between a hotel occupied, operated, and maintained by a claimant and an apartment house is apparent. In the case of an apartment house the claimant as lessor does not occupy the apartments leased by him to others. They are rented out for a term. The apartments are independent of each other. As a rule the owner occupies only one apartment. His homestead right should be limited to what he occupies for his own dwelling purposes. To hold otherwise would be to go far beyond the intent and purpose of the law, as well as its letter.

The question was squarely raised in Potter v. Clapp, 203 Ill. 592 (68 N.E. 81, 96 Am. St. Rep. 322), and I am in accord with the very apt statement of the Illinois court:

"In case a householder occupies a flat in a flat building, or an apartment in an apartment building, as a homestead, his residence is as much disconnected from the other flats or apartments located in said building as though the portion thereof occupied by him was located upon a different lot or under a different roof; and while in a case like this it might work no great harm to hold that the widow, after the death of the householder, might rightfully retain the possession of the entire building until her homestead was assigned, if the principle were applied to a building containing, as is often the case in large cities, many flats or apartments, it would lead to absurd results."

The court cited Rhodes v. McCormick, supra, and Mayfield v.Maasden, 59 Iowa, 517 (13 N.W. 652). See, also, 2 Freeman on Executions (3d Ed.), p. 1300, § 241, and Herman on the Law of Executions, p. 124.

The decree of the lower court was correct in holding that the homestead exemption did not apply to the entire building, and should be affirmed, with costs to the appellee.

NORTH, J., concurred with BUTZEL, J.