Gasser v. Crittenden ( 1905 )

Montgomery, J.

(after stating the facts). We are satisfied that the circuit judge was fully justified in setting aside the transfer of the back 40. The questions involved in respect of this 40 are questions of fact. A discussion of the testimony is not deemed necessary. The circuit judge saw the witnesses, and was in a position to judge of their credibility from their appearance. We may say, however, that a close scrutiny of the printed record enables us to say that we are abundantly convinced that no mistake was made.

The decree was, however, too broad in restraining the alienation of the homestead. Walker v. Sauer, 97 Mich. 464. Complainant’s counsel in this court says that defendants might protect their rights in the homestead by a notice to the sheriff. If the decree should be construed as leaving the question of the right to sell the front 40 open for future consideration — which would be a forced construction — it is still too broad in restraining its alienation, when on this record it clearly appears to be defendants’ homestead.

The decree will be modified as indicated above. No costs will be awarded in this court.

Moore, C. J., and Grant, Blair, and Ostrander, JJ., concurred.