Nims v. Sherman

• Decision Date: 11 February 1880
• Court: Michigan Supreme Court
• Parties: NIMS v. SHERMAN.

4 N.W. 434

43 Mich. 45

NIMS v. SHERMAN.

Supreme Court of Michigan

February 11, 1880

Plaintiff in error purchased certain land of one G., the owner thereof subject to certain mortgages and pending proceedings for foreclosure, which proceedings were ineffectual for failure to make G. a party thereto. Defendant claimed title through the purchaser at foreclosure sale, and testified that before purchasing he went to plaintiff in error, then in possession and asked him in regard to his claim, and that he then made no claim of title under the equity of redemption or adverse to that supposed to have been transferred by the foreclosure proceedings, and the finding of the jury was to the effect that he also agreed orally to surrender the possession. Held that as he was then the owner, subject to the mortgage, his oral agreement to surrender possession was not binding; that he did not become a tenant at will or by sufferance, and was not estopped from questioning the title of defendant in error in proceedings to recover the possession.

Error to Ingham.

Henry A. Shaw, for plaintiff in error,

Henry P. Henderson, for defendant in error.

COOLEY J.

This was a special proceeding before a circuit court commissioner to recover possession of lands. It was appealed to and tried in the circuit court, where Sherman, who was complainant recovered judgment. It is now brought to this court by writ of error on exceptions.

Sherman derives his title by deed from one Wheaton, bearing date June 17, 1878. At this date Nims was in possession, and had been in possession for a year and a half or thereabouts. It was shown on the trial, and was not disputed, that Wheaton's title was derived through the foreclosure of a mortgage in chancery, which was ineffectual for the reason that the legal title to the land when the foreclosure suit was instituted was in one Graves, who was not made a party to the suit. Graves deeded to Nims in November, 1876, and Nims went into possession under his deed.

Wheaton testified on the trial that, before taking the deed from Graves, Nims came to him and had a talk about buying the land; that the foreclosure was not then complete; that Nims then said he was proposing to buy of Graves, but Wheaton advised him it was not worth while, as the Graves title would be extinguished by the foreclosure; that Nims afterwards told him he had bought out Graves, and wanted to get the land, and that an agreement was finally made between them that Nims might have the land on paying the amount of the mortgage in foreclosure and another mortgage which Wheaton expected to take up, and the further sum of $200. The arrangement was oral, and Nims paid $200 upon it. Afterwards, when Sherman proposed to buy the land, Wheaton went to Nims and inquired of him if he wanted to keep it, and Nims replied that he did not think he could pay for it. Wheaton says Nims then told him he would give up the land on being repaid the $200, but Wheaton replied that he did not think he could get that back for him, but would if he could after realizing the amount of the two mortgages, and would pay him what he could get above the amount of those mortgages. He further says Nims then told him to go on and sell the land. Nims, on the other hand, testifies in substance that he agreed to give up the land on being repaid the $200 and not otherwise.

The principal question in the case arises on what is testified to by Sherman as having taken place between himself and Nims before his purchase from Wheaton. He says, in substance, that he called upon Nims to inquire what right he claimed in the land, and that Nims made no claim under the Graves deed or in any way adverse to Wheaton. He told Nims that Wheaton had informed him that Nims would leave the land as soon as he harvested his wheat, and Nims replied that that was correct, and he would do so. But after the trade with Wheaton had been perfected, and after the wheat harvest, when he called on Nims again, the latter refused to leave. Nims, on the other hand, denies that he had any interview with Sherman until after he heard that the latter had bought, or that he ever agreed to leave on other terms than the repayment of what he had paid to Wheaton. When Sherman found Nims would not surrender possession he caused the statutory notice, provided in the case of tenants at will, to be served upon him, and when this notice was not regarded the present proceeding was instituted, and has resulted in a judgment that Sherman recover possession.

The question the record presents arises upon the charge of the court, and as the charge states, concisely, the facts on which the legal instructions are based, it is proper to give it in full. It is as follows:

"This cause is an appeal from the circuit court commissioner, and the proceedings were commenced by Mr. Sherman against Mr. Nims, for the purpose of recovering possession of certain land. The plaintiff claims, you remember, under Wheaton, by a deed dated June 7, 1877, and the defendant at that time was in possession. Wheaton became the purchaser under the foreclosure proceedings, which have been given in evidence, but these foreclosure proceedings were ineffectual to cut off the title or right which was at that time held by Graves. Graves was not a party to the foreclosure proceedings, and they were ineffectual, for that reason, to transform the mortgage, which was sought to be foreclosed, into a deed absolute. As to him it was still a mortgage, and he still had a right to redeem, and it is enough to say, as to Wheaton, I discover nothing in the case to prevent Graves from relying upon his deed, which he had at the time of the foreclosure proceedings. In other words, there is nothing in the case tending to estop him from asserting his title as against Wheaton; but, you remember, Wheaton afterwards sold to Sherman, and Graves conveyed to the defendant Nims, and the question to be determined is, whether Nims was a tenant at will, or at sufferance of Sherman, or whether he has a right to hold adversely to him. The statute under which the proceedings were commenced provides, among other things, that whenever any tenant at will or sufferance shall hold over after the determination of his estate, by notice to quit, as provided by law, these proceedings to recover possession may be had. So, in order to recover possession, as against Nims, the plaintiff must show that he is either a tenant at will, or by sufferance, otherwise he cannot maintain the proceedings.

"If the defendant is not a tenant, but is holding adversely to him, then these proceedings, of course, cannot be maintained; so that the only difficulty

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