Barker v. Klingler

• Decision Date: 10 June 1942
• Docket Number: No. 33.,33.
• Citation: Barker v. Klingler, 302 Mich. 282, 4 N.W.2d 596 (Mich. 1942)
• Parties: BARKER et al. v. KLINGLER et ux.
• Court: Michigan Supreme Court

302 Mich. 282

4 N.W.2d 596

BARKER et al.

v.KLINGLER et ux.

No. 33.

Supreme Court of Michigan.

June 10, 1942.

Action in ejectment to try title by Glenn E. Barker and others against Bruce C. Klingler and wife. From a judgment dismissing the action, plaintiffs appeal.

Affirmed.

Appeal from Circuit Court, Ionia County; Royal A. Hawley, judge.

Before the Entire Bench.

Floyd W. Cone, of Belding, for appellants.

Eldred & Gemuend, of Ionia, for appellees.

SHARPE, Justice.

This is an action in ejectment to try title to certain property conveyed by Mary Whitford, a common grantor, to both plaintiffs and defendants.

Prior to 1933, one Edmund E. Whitford was the sole owner of about 20 acres of land in Orleans township, Ionia county, Michigan, lying adjacent to Long Lake. About 1933, defendants, Bruce C. Klingler and wife, entered into an agreement to purchase some of this land. No land contract was ever executed by the parties, but the purchase price was paid in full by the defendants who went into possession of the land and in 1935 built summer cottage. Edmund E. Whitford died in March 1937, never having executed any deed to defendants.

Edmund E. Whitford during his lifetime had contemplated platting this entire 20 acres and in June 1935 engaged a civil engineer who made a survey and a proposed plat of the property. This plat was never recorded, but the parties have stipulated that it should be submitted to us; and we are including a diagram of a portion thereof and for convenience in identifying the property in dispute we will refer to the parcels by the lot numbers on the proposed plat.

IMAGE

Defendants' cottage is located about 5 feet from the rear of lot 29 and for some time prior to October 1937 defendants occupied and used the entire lot to the water's edge, filling in a low spot in front of the cottage and plaintiff shrubbery. They had also occupied lots 50 and 51, marking the corners by stones and taking dirt therefrom for the fill in front of the cottage.

It is undisputed that record title to the entire 20 or more acres became vested in Mary Whitford, widow of Edmund E. Whitford. On October 25, 1937, she entered into an agreement with plaintiffs for the sale of the entire 20 or more acres with the following provision: ‘excepting * * * and also reserving certain lands in the within description belonging to Bruce Klingler.’

Following this agreement, some attempt was made to get a description of defendant's property, but this failed and on January 27, 1938, Mary Whitford executed a deed to defendants conveying to them only a piece of property 100 feet by 40 feet upon which their cottage was located. The deed contained the following provision: ‘Above description includes full access to the lake frontage for personal use, and is restricted as to concessions or business enterprises.’

This deed was sent to defendants who were then residing in Syracuse, New York. It was held by them until they could return to Michigan and was recorded by Mrs. Klingler on August 12, 1938.

Shortly thereafter, defendants discovered that the deed did not cover all of the property which they had purchased. On November 19, 1938, Mrs. Whitford executeda ‘correction’ deed to defendants covering all of what appears on the diagram as lots 29, 50 and 51, the 20 foot strip of land between lots 29 and 51, the 20 foot strip of land along the easterly side of lots 50 and 51, and the right of ingress and egress over and across certain described property. This deed was recorded November 21, 1938.

Prior to the November 1938 conveyance to defendants and on March 8, 1938, a land contract was executed between Mary Whitford and plaintiffs Elizabeth Barker and Donald G. Barker which was never recorded. It included all of the 20 acres except a lot 100 feet by 40 feet which Mrs. Whitford had conveyed to defendants on January 27, 1938, and lots 50 and 51. Pursuant to this contract and on July 18, 1939, a deed was executed to plaintiffs covering all of the land described in their land contract.

In October 1939, plaintiffs filed an action in ejectment for possession of (1) the strip of land in lot 29, 7 feet at one end, 22 feet at the other end and 40 feet long, along the lake shore, (2) the parcel of land 20 feet wide at the rear of the cottage and between lots 29 and 51, (3) a strip of land 20 feet wide along the cast boundaries of lots 50 and 51, (4) the land covered by the easement granted in defendants' deed of November 1938. They claim title to this property under the land contract of March 8, 1938, and the deed of July 18, 1939.

Defendants answered and claim title to the disputed property by virtue of their prior deed of November 19, 1938, and claim that this deed was made pursuant to contracts and agreements originally made with Edmund E. Whitford; that for several years prior to March 8, 1938, they were in continuous possession of the property covered by their deed of November 1938; and that plaintiff had notice of this possession.

The trial court held that defendants have title to the land in dispute by virtue of their prior deed of November 19, 1938, and dismissed the plaintiffs' cause of action.

Plaintiffs appeal and contend that the so-called correction deed of November 1938 was as to all except lots 50 and 51 not a correction deed, but a conveyance enlarging the estate of the defendants; that under the land contract with plaintiffs, Mrs. Whitford held the title to the disputed property for security and as trustee for plaintiff; and that on November 19, 1938, she had no title which she could convey to defendants.

This is an ejectment action. In the recent case of Briggs v. Prevost, 293 Mich. 677, 292 N.W. 527, 528, the rule applicable here was stated: ‘It is elementary that to prevail in an ejectment proceedings the plaintiff must rely upon the strength of his own title, not on the weakness of defendant's title. Ridgley v. Roma, 282 Mich. 682, 276 N.W. 872. Clearly in such case a plaintiff could not prevail if defendant had a prior valid title.’

Following the death of Edmund E. Whitford, legal title to the property became...