Bertram v. Cook
| Decision Date | 26 October 1875 |
| Citation | 32 Mich. 518 |
| Court | Michigan Supreme Court |
| Parties | Willis Bertram v. Addison P. Cook |
Heard October 21, 1875
Error to Lenawee Circuit.
Judgment affirmed, with costs, and record remanded to the court.
Stacy & Underwood and A. L. Millard, for plaintiff in error.
W. W Osborn and Walker & Weaver, for defendant in error.
Cook brought an action of ejectment against Bertram to recover possession of certain lands in Lenawee county.
Cook testified that he took possession of the premises as agent of his father, and that he afterwards purchased the premises; that he afterwards agreed to sell the premises to one Peter H. Hollenbeck, and on the 10th day of January, 1867, a written agreement was entered into between him and Hollenbeck for the sale of the premises, by which Hollenbeck agreed to pay him eight thousand nine hundred and fifty-eight dollars, in certain installments, and also to pay in due season all taxes and assessments upon said premises. The agreement also provided that in case of default in any of the payments as therein stipulated, Hollenbeck, his heirs, representatives and assigns, should afterwards be considered as tenants at will, and that Cook should have all the rights and remedies growing out of such a relation.
It further appeared that the contract had not been fulfilled by Hollenbeck; that in June, 1867, he assigned his interest under this contract to James M. Spear, who took and continued in possession of the premises until April, 1869.
It also appeared that Lorenzo Tabor had a tax-title deed of these premises dated December 6, 1861; that he conveyed his interest thereunder to plaintiff in error March 20, 1869; and that Bertram also obtained a deed from the auditor general dated December 13, 1870.
There was evidence tending to show that Ezra Bertram and Spear entered into an agreement under which Ezra Bertram entered into possession of these premises before or about the time Spear left; that Ezra remained in possession a few days, when he yielded up possession to his son, the plaintiff in error, who entered, claiming to own the premises under the auditor general's deed to Tabor.
All the questions raised in this case turn upon the relations existing between Cook and Willis Bertram under the facts as stated. The plaintiff in error insists that he had a right to ascertain from Spear at what time he (Spear) was going to give up possession of the premises; that having then, by his superior vigilance and activity, obtained the actual possession, he does not claim through or under Spear, and is not estopped, therefore, from denying Cook's title, but can hold and claim title under his tax-deeds.
The court in substance charged the jury, that if Spear obtained possession of the land under the land contract referred to and if defendant Bertram, either by himself or by collusion with his father acting for him,...
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