Brown v. Clarke

• Citation: 44 Mich. 309,6 N.W. 679
• Court: Supreme Court of Michigan
• Decision Date: 06 October 1880
• Parties: BROWN and others v. CLARKE and others.

6 N.W. 679

44 Mich. 309

BROWN and others v. CLARKE and others.

Supreme Court of Michigan

October 6, 1880

A wife died in 1847, seized of certain land, and leaving children surviving the issue of her marriage. Her husband, after her death, continued to reside upon such land until his death, in 1878. He married a second time in 1848, and left, surviving a widow, and children by both the first and second marriages. Held, that his possession of the land, after the death of the first wife, was as tenant by the curtesy, and not adverse.

Error to Kalamazoo.

Edwards & Stewart and T.R. Sherwood, for plaintiffs.

Balch &amp Shakespeare and Brown, Howard & Roos, for defendants.

COOLEY J.

The action in this case is ejectment. The facts are in the main undisputed. In June, 1846, Joseph Brown purchased the lands now in controversy, and caused them to be conveyed to Irene F. Brown, his wife. Irene F. Brown died March 4, 1847 leaving nine children surviving her.

Joseph Brown was then in possession of the land, and he continued to occupy it from that time until his death, which occurred in 1878. In 1848 he inter-married with Eliza M. Brown, who survived him and is now his widow. By her he had children who survived him. After the death of Joseph Brown the heirs at law of Irene F. Brown, who were children of Joseph Brown by his first marriage, brought this suit against Eliza M. Brown and two of her children, then living with her upon the land. They defended, relying upon a title by the adverse possession of Joseph Brown from the time Irene F. Brown died, in 1847, till Joseph Brown's death, in 1878. In the circuit court this defence was not sustained and the plaintiffs had judgment.

The circuit judge tried the case without a jury, and there is no finding of facts. We are not informed, therefore, whether he did or did not reach the conclusion that Joseph Brown, after his first wife's death, claimed to hold the land adversely to her heirs. There was evidence which might support that conclusion, and there was also some of a contradictory nature. The plaintiffs below claimed that Joseph Brown's occupation was that of a tenant by the curtesy, while the defendants denied that any such tenancy did or could exist under the laws then in force. The question is one of statutory construction, and the view taken by the defence may be stated as follows:

Tenancy by the curtesy, except so far as the right might then be in existence, was in effect abolished in 1844, by an act which gave to married women the complete enjoyment of their estates. Sess.Laws 1844, p. 77; Rev.St.1846, p. 340, � 25. The...