In re Boothroyd , 3 F. Cas. 895 ( 1877 )

BROWN, District Judge.

By Comp. Daws [1871, vol. 2, p. 1749], § 6137, “a homestead . . . owned and occupied by any resident of this state shall not be subject to a forced sale on execution.” Respondents rely upon.the decision of the supreme court of this state in McKee v. Wilcox, 11 Mich. 368, as sustaining their position that Gibbs and his family cannot be ousted from the possession of the lot in question, until the rights of his wife thereto have been passed upon by a plenary suit. The only question in that case was, whether a homestead could be claimed in land of which the party was in possession under a contract to purchase. It was held that such lands were subject to homestead rights, and that where a married man, in possession under a contract to purchase, surrendered his contract without the assent of his wife, the surrender was invalid, and his wife might file a bill in equity in her own name and have a specific performance. The existence of the homestead having been established, the inability of the husband to surrender it without the assent of his wife followed as a matter of course. The case obviously has no bearing upon the question under consideration. A moment’s reflection will show that the wife of the bankrupt has no interest in the lot in question, although occupied by her. She never owned it, and had no interest in it, except in subordination to her husband’s title; this title having been adjudged invalid her claim vested, with that of her husband, in the assignee. Herschfeldt v. George, 6 Mich. 456. Though the act provides that the homestead shall not be alienated without the consent of the wife, there must be an actual, legal homestead to make the act operative.

The title of the mortgagees is no better than that of their mortgagors; they are privies in estate with him, and taking the mortgages as they did, after the decree in this court adjudging Gibbs’ claim invalid, they are bound by the decree and no suit is necessary to set aside their security. Had they, instead of taking a mortgage, received an absolute deed of the premises and gone into possession, they might have been ousted by the marshal under the order of this court, requiring possession to be surrendered to the assignee. See Crock. Sher. § 558; Freem. Judgm. § 171; Jackson v. Hawley, 11 Wend. 182; Noe v. Gibson, 7 Paige, 513; Jackson v. Tuttle, 9 Cow. 233. An order will be issued requiring Gibbs to vacate the lot in question, and the mortgagees to discharge their security.