Sheppard v. Lane , 1 Mich. Pr. 3 ( 1896 )

The faets as alleged in the petition for -mandamus v/eiQ as’fallows:

o — That on April' 10, 1892, relator purchased a homestead in the City of Detroit for $2800, which' included a purchase money mortgage'for $2000 and had occupied the premises as her homestead since said purchase.

b — That on September 18, 1893, said homestead and- other property were attached at the'suit of one of relators creditors; that in December 1893, the plaintiff in attachment obtained a judgment against relator; that an execution was issued on said judgment and levied upon said homestead in continuation- of the attachment levy; that said homestead is only worth including said mortgage, which amounts to $2400 the sum of $3200; that the mortgage has been foreclosed by advertisement and the homestead sold to a third party; that the EKdemption year-expires October 28,1896; that relator has been prevented by said attachment and ' execution levies from selling said ' homestead or borrowing money thereon with which to redeem it from said mortgage.

e — -That on November 5, 1895, relator filed a bill in the Wayne circuit court in Chancery to remove the cloud created by the attachment and execution levies. (A copy of said bill is attached to the petition for mandamus, in which it is stated among other things that the premises levied upon were appraised; and that the appraisers found the value of the homestead including the mortgage to be the sum of three thousand dollars. A copy «of defendants answer is also attached to said petition, Editor.)

d — That the respondent dismissed said bill for the reasons, as stated in his opinion that the case made by the bill is that the premises levied upon are complainants homestead, and as to value within the statutory amount; that the defendants in their answer say that said premises are not complainants home- and if they are, that they exceed value the sum of fifteen hundred dollars; that the statute provides a by which under the levy the homestead question shall be determined; the .levy recognizes complainants homestead rights, and it is a simple question from the testimony as to whether the premises exceed in value the of fifteen hundred dollars; that the chancery court cannot intervene and the place of the appraisers provided by said statute, for the determination this question.