Burt v. Burt
| Decision Date | 04 June 1879 |
| Citation | 41 Mich. 82,1 N.W. 936 |
| Court | Michigan Supreme Court |
| Parties | DAVID BURT v. EDWIN M. BURT. |
Where in an action of replevin, the evidence for plaintiff showed that at the time of making and filing the affidavit the property was not unlawfully retained by defendant, held, that plaintiff could not recover. Where, in a deplevin suit, a verdict was rendered for defendant, held, that the fact that the defendant did not own the property did not, as against the plaintiff, interfere with a right to damages for the unlawful detention.
This is an action of replevin for a span of colts, a wagon and a harness. The defendant is the son of the plaintiff, and the suit had its origin in a family difficulty.
The plaintiff's version of the facts, so far as they seem material in making out his case, is as follows: Plaintiff was married in 1841 to a Miss Prosser, in the State of New York and settled with her upon an eighty-acre lot in Macomb County, in this state, where the wife still resides. In 1859 he and his wife had a difficulty, and a separation was agreed upon. At that time he owned two eighty-acre lots, and it was agreed that the one on which the house was situated should be deeded to the wife's father for her benefit, and that plaintiff should retain the other. He deeded accordingly, and the father subsequently deeded to the wife. The children, of whom there appear to have been several, were to be left with the wife, and to be taken care of by her, and her father was to see that she supported them. At the same time a bill of sale of the personal property was executed by plaintiff to the wife's father. This instrument was not produced in evidence, but plaintiff says "it was to be null and void in case we did not separate." He says they did not separate, but, under the advice of a neighboring justice of the peace, went on living together as before. Nevertheless as near as we can gather from his testimony, he seems to have lived somewhere else than with his wife a large proportion of his time from 1859 to 1877; in Illinois, in Canada and in Lapeer; while his wife remained on the farm with the children, retaining the personal property. This property was sold and exchanged from time to time, defendant, so far as appears, being the active agent in these transactions. The two colts in controversy in this suit were foaled by mares which defendant had obtained in trades for property left on the place by plaintiff, and the plaintiff traces title to the colts only as he shows that the mothers must have been his because his property was traded for them by defendant. It does not appear that they were ever in plaintiff's possession, for as the wife was owner of the homestead where the family resided who kept and used the colts, they were presumptively in her possession all the time. The wagon was obtained by defendant in a similar manner. The evidence is by one of plaintiff's witnesses There is some evidence that the harness in controversy was bought by plaintiff, and paid for in part by him and in part by defendant, but there seems to be uncertainty, on plaintiff's evidence, whether the harness bought by defendant, and which went to and was left upon the farm, was not traded off by defendant. Plaintiff testifies that the harness "is the same now in controversy unless it has been traded for this harness."
In April, 1877, plaintiff seems to have been living on the farm with his wife. The defendant and one of his brothers were arrested on a charge of larceny, and offered plaintiff as bail. Some question being made as to his responsibility, defendant spoke of his father's property, and of the colts now in suit belonging to him. Plaintiff went away again in August, 1877, because, as he says, he did not consider it safe to stay there. He says:
This is all the evidence of the relations of the parties to each other and to the property that it seems necessary to give, though it is proper to say that plaintiff testifies that between 1859 and 1877, when he was "on and off," he was accustomed to send home money for the support of the family, and among other circumstances he sent sixteen dollars to pay the charges for siring the colts now in controversy. Respecting the replevy of the property in suit, plaintiff testified: ...
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