Allen v. Carpenter

• Decision Date: 08 November 1866
• Citation: 15 Mich. 25
• Court: Michigan Supreme Court
• Parties: Allen v. Carpenter

15 Mich. 25

Allen v. Carpenter

Supreme Court of Michigan

November 8, 1866

Heard July 10, 1866 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Lenawee county circuit.

This was an action of trespass quare clausum, for entering upon the premises of plaintiff and removing certain crops and committing certain other injuries.

Defendant pleaded the general issue, and gave notice of special matter.

The cause was tried by a jury, and a verdict rendered for defendant.

The plaintiff removed the same by writ of error.

The facts are stated in the opinion.

Judgment affirmed.

A. L. Millerd, E. H. C. Wilson and A. F. Bixby, for plaintiff:

1. The court below erred in ruling out the evidence of the proceedings before the circuit court commissioner, Hogaboam.

The appearance of the defendant, and pleading and going to trial on the merits, waived any objection to the complaint on account of the mistake in the date of the jurat, and the other objections taken thereto.

And even if the proceedings should turn out to be technically irregular, it was competent for the plaintiff to show that he took such proceedings in good faith, to obtain what was lawfully his own, and which the defendant was wrongfully withholding from him. The proceedings, even if irregular, were equivalent to a demand of the possession. They were notice to the defendant that his remaining was against the will of the plaintiff, and his resistance to them was equivalent to a refusal to yield the possession.

The fact that the plaintiff commenced such a proceeding in 1863, and prosecuted it until he was stopped by the injunction, and then commenced again as soon as the injunction was removed, effectually negatived the idea, and rebutted any presumption that Prior's remaining there, and putting in the crops in question, was with the assent or tacit permission of the plaintiff.

2. The court erred in receiving evidence that Prior did not know of the foreclosure of the mortgage until after the plaintiff purchased the farm.

This was wholly immaterial.

3. Prior did not acquire a tenancy, either at will or by sufferance, by the omission of Clark, after the foreclosure of his mortgage, to take immediate steps to dispossess him, and the charge on that point was erroneous.

He, or his assignee, was entitled to take the proceedings at any time after the time of redemption expired, without further notice, unless he had done something or said something that should amount to a consent for the mortgagee to remain, or to put in crops. No such consent could be implied from his mere omission to take immediate steps to obtain possession.

If such consent could be implied from the fact of his standing by and allowing the mortgagor to put in crops without objection, knowing that he was doing so, it certainly could not without proof of knowledge on his part. There was no such proof, and if there had been any tending to show it, or from which it might be inferred, it should have been submitted to the jury.

The mortgagee is entitled, as against the mortgagor or his lessee, to the crops growing on the premises at the time of the foreclosure, and may maintain trespass against him for taking them away: 8 Wend. 58; 1 Leigh 297; 14 Pick. 238; 2 Denio 174.

If he is entitled to the crop put in by the mortgagor before the foreclosure, and while the latter is in rightful possession, certainly he is no less entitled to a crop put in after the foreclosure is complete, and while he is kept out of possession wrongfully by the mortgagor.

A mortgagor is not entitled to notice to quit, nor to emblements: 1 Hill. on Mortgages, 120; 4 Cow. 266.

The statute gives a mortgagee this remedy, by summary proceeding, to recover possession against a mortgagor holding over: 2 C. L., § 4985

A mortgagee who purchases under a foreclosure sale may treat the mortgagor who holds over, either as a tenant or a trespasser, at his option: 2 B. Monr., 158; 1 Hill. on Mortgages, 126.

The notice of sale on the foreclosure was equivalent to three months' notice to quit: 17 Johns. 300; 4 Cow. 266, 279.

And a delay to take these proceedings, though it were mach longer than in this case, would not be a waiver of the notice: 2 Cow. 547.

No tenancy can arise by implication, under a party who has not the legal estate: Taylor's Land and Ten., § 25; 2 Man. & Ry., 303.

Prior's possession has been adverse to Clark and his assignee, ever since Clark's title accrued. He has all the time disputed and contested the right of the latter, and himself claimed the ownership. This estops him from claiming, now, that he was in as a tenant to Clark, being utterly inconsistent with such a claim: 3 Johns. 422.

The possession of the plaintiff was rightful, whether the summary proceedings by which he obtained it were technically regular or not. He was legally entitled to the possession of the farm, and of the crops growing on it, and having obtained it, he was entitled to retain the same, and to maintain trespass against any one not having a superior right, that should enter and disturb his possession.

This would be so even if he had entered forcibly, and under such circumstances as would render him criminally liable for a breach of the peace: 36 Me. 436.

C. A. Stacy and A. Howell, for defendants:

The plaintiff claims right to possession, and power to evict under the proceedings before the commissioner. We claim those proceedings are void, because,

1. There was no complaint, such as is required by the statute. The jurisdiction of the commissioner depends absolutely upon a complaint being made as required by law, on oath, setting forth certain particulars, and being delivered to the officer: 2 C. L., 1324, § 12, 1325, §§ 13 and 14.

a. Here the complaint showed that on the 29th of September, 1861, certain facts existed, on which they asked process in 1864: 10 Mich. 229, 235; 4 Id. 339.

b. The statute contemplates that the complaint and oath shall be made by the same person (see § 13), either by the party, or attorney, or agent.

In this case the complaint is made by Allen--the oath by Bixby--and the oath is only to his belief, though he swears that he is fully acquainted with the truth of the facts stated in the complaint.

2. But even if the complaint and summons are good under the statute, still the judgment is bad, because it only finds the possession of Prior and his unlawful holding over against the just rights of the complainant, and does not find that the complainant was entitled to the possession of the premises. (See cases above cited.)

If these proceedings were properly ruled out--if, in fact, there had been no proper foreclosure--then it follows that the plaintiff had no right to the possession of the lands, but was in possession by force, and, therefore, as a wrong-doer: 23 Vt. 630, 645.

The statute in Vermont is like ours, and the principles of this decision apply to our statute.

3. But we contend that even if the foreclosure is valid, and the proceedings before the circuit court commissioner good, and the judgment a legal one, which authorized the issuing of the writ of possession, still the defendant Prior was entitled to possession until he received three months' notice to quit, because.

a. Estates at will or at sufferance can only be determined by three months' notice: 2 C. L., p. 857, § 34; 17 Mass. 282, 287; 1 Pick. 43; 2 Gray 226, 336; 2 Id. 70; 6 Id. 339.

b. By our statute, estates for years seem to have been abolished: 2 C. L., 818, § 1.

c. At common law it was held that so long as the mortgagor remained in possession with the acquiescence of the mortgagee, and without any covenant for the purpose, he was a tenant at will: 4 Kent's Com., 155, 156; 5 Barn. and Ald., 604; 1 Term R., 383; 2 Doug. Mich., 377.

d. In New York, notice to quit is necessary: 2 Johns. 76; 4 Id. 215; 18 Id. 487.

e. After the time of redemption has expired, the mortgagor remains lawfully in possession as tenant at will or by sufferance, against the mortgagee who permits him to remain without objection.

This was the case before redemption, before the passage of the act of 1843 prohibiting actions of ejectment before foreclosure and the expiration of the time of redemption. The legal rights of the mortgagor are the same in both cases.

His equitable rights before foreclosure and redemption entitled him to redeem: 1 Mich. 68.

His position, then, after expiration of time of redemption, was that of tenant at will, modified, of course, by the provisions of the statute: 2 C. L., p. 1324, § 12, clause 3; Id., 1365, § 10.

The advertisement and filing of the papers in register's office were only constructive notices so as to bar redemption: 2 C. L., chap. 157.

There was no actual notice of the foreclosure. The testimony shows that Prior had no notice until after the sale from Clark to Allen.

Prior, then, after March 22d, 1863--the date of the expiration of the time of redemption--remained in possession lawfully, and not as a wrong-doer, when Clark, knowing the fact of the foreclosure and expiration of the time of redemption, allowed Prior, ignorant of both, to go on and put in crops, and continue to occupy the premises. He put him in the position of a tenant at will, or, at least, tenant by sufferance, and he was entitled to notice to quit by the terms of the statute.

Cooley, J. Christiancy, J., Campbell, J. Martin, Ch. J. concurred.

OPINION

Cooley J.:

The facts in this case are briefly the following:

One Clark being the owner of a mortgage given by Henry Prior on a farm owned by the latter, took proceedings for its foreclosure under the power of sale, and caused the premises to be struck off to himself for the amount of the mortgage and costs. The time for...