Butler v. Roys

• Decision Date: 30 April 1872
• Citation: 25 Mich. 53
• Court: Michigan Supreme Court
• Parties: Milton H. Butler v. James A. Roys and others; and same v. Grover S. Wormer and others

25 Mich. 53

Milton H. Butler v. James A. Roys and others; and same v. Grover S. Wormer and others

Supreme Court of Michigan

April 30, 1872

Heard April 11, 1872

Error to Wayne Circuit.

Joseph Campau died seized of a large number of parcels of land of different values, in Wayne county and elsewhere, leaving nine children as equal heirs. The interest of one of these heirs Theodore J. Campau, in each of four separate city lots in Detroit, was sold on execution, levied upon such interest in said lots alone, which were only a portion of the lands in said county belonging to such inheritance. The interest in each lot was sold separately. On a partition among the heirs to which the execution purchasers were not made parties these lots were set off to Daniel J. Campau and Denis J Campau, two of the other heirs of said Joseph Campau. The plaintiff, as grantee of the execution purchasers, brought ejectment against such heirs and their tenants, Roys and Wormer, for an undivided one-ninth interest in these lots. The judgment of the circuit court was in favor of the defendants, and the plaintiff brought error.

Judgment reversed, with costs, and a new trial granted.

John J. Speed, E. W. Meddaugh, G. V. N. Lothrop, and R. P. Toms, for plaintiffs in error.

S. Larned, D. B. & H. M. Duffield, Henry M. Cheever, and C. I. Walker, for defendants in error.

Campbell, J. Cooley, J., and Christiancy, Ch. J., concurred. Graves, J., did not sit in this case.

OPINION

Campbell, J.

The material facts for the decision of this cause are, that Joseph Campau having died seized of a large number of parcels of land of different values, in Wayne county and elsewhere, and having left nine children as equal heirs, the interest of one of them, Theodore J. Campau, was sold on execution, not levied on such interest in all the lands in Wayne county, but on four separate city lots in Detroit, and the interest in each lot was sold separately. On a partition among the heirs, to which the purchasers were not made parties, these lots were set off to other heirs, and not to Theodore. The execution purchasers bring ejectment for their undivided interests in these lots, the present cause being on the same footing with the others which are to abide this decision. The suit is defended on the ground that the execution sales were invalid, because covering parts and not all of the estate in common.

The question presented here was urged, but not decided, in certain suits in equity brought to set aside the execution sales; Campau v. Godfrey, 18 Mich. 27. It now becomes necessary to decide it, as disposing of the substantial rights of all parties concerned.

There are more dicta than decisions upon the precise point in litigation here, and we have rarely found a matter of so much importance on which so much has been carelessly said, and so much inferred without adequate authority. It is nevertheless important to have the rights of parties settled finally, and we have done what we could, with the aid of counsel, to satisfy our own minds on the subject. And upon the exact dispute involved here, we have, at least so far as our own views are concerned, got rid of the very serious doubts which seemed at first to involve the doctrines of the law in great confusion.

The principal controversy is not whether a tenant in common can convey his interest by metes and bounds in a part of an estate, but whether all of the various tenements held in common in a State, county, or other municipal territory, are to be regarded as one estate in common, for all purposes of conveyance and partition. And this is the only question which we are required to pass upon in this controversy.

The lots in question in these actions of ejectment, all belong to the Governor and Judges' plat of the city of Detroit, and are separate freeholds. No one of them appears to have been so combined with any other as to make them one indivisible holding by separate occupancy, by lease for a single and unapportioned rent, by subjection to a single charge, or in any other way. And there is nothing to show that the possession of any one of them is necessary to the enjoyment of any other. The case is, therefore, presented very simply, and involves no peculiar complications.

The ground on which it is claimed no tenant in common can pass an undivided interest in any less than the whole estate, is that, by so doing, he prevents his co-tenants from any chance of obtaining the whole of the lesser tract in severalty, as they might otherwise do, in case a partition should be had. In other words, he limits their chances of getting entire lots to a smaller number of parcels, and may make it necessary for them to get a number of little tracts, instead of one or more larger ones.

This is a tangible grievance, and may become a very serious one. The only question for us to consider is, whether it is an interference with any legal right.

It will be found that the decisions holding or favoring this doctrine are all American, and all rely for authority upon the leading cases in Massachusetts. The few English decisions on which these latter rely (Tooker's case, 2 Co., 68, and Cro. Eliz., 803, being the principal ones), are not decisions upon this subject, but only hold that joint tenants and tenants in common can do nothing to lawfully prejudice the estates of their co-tenants. They do not any of them hold, so far as we have been able to discover, that where there are several distinct freeholds, or estates, a disposal of an undivided interest in one of them would work a legal prejudice. And it is only unlawful acts which can do this. The whole ruling, therefore, is an assumption, unless founded on more specific authority, and must depend on controlling reasons, or must be considered as open to question. It will be seen, by a close inspection, that while the point involved in the case before us has been spoken of with some positiveness, there has been very little occasion to decide it.

Porter v. Hill, 9 Mass. 34, is the leading case. There a single large tract of land had been sold to joint tenants, who mortgaged it back for the purchase money. The smaller parcels in which undivided interests were transferred were carved out of this estate, and the entire estate became vested in the grantor of the defendant. The case was decided without either citation of authorities or reasoning, the whole doctrine being laid down in these two sentences. "And one joint tenant can not convey a part of the land, by metes and bounds, to a stranger. If he could, his grantee would become tenant in common of a particular part with the other joint tenant, who, in making a legal partition, might, notwithstanding, have the whole of the part thus conveyed assigned as his property." This brief assertion, in a case where there was but one estate, and where it was a correct rule, has been made the starting point for all the decisions in the country, so far as they have been traced out, leading to a broader doctrine.

The next case was Bartlet v. Harlow, 12 Mass. 348, where there had been a levy by extent upon an interest in twenty acres out of a single tract of sixty acres. In this case, while it is said there is an absence of common-law authority to sustain such a transfer, and while an explanation is made of certain remarks of Lord Coke, as not fairly bearing such a construction as would favor it, the only unequivocal authority cited, is one from Brownlow, which very distinctly holds that where there are several estates there may be separate sales. Porter v. Hill is affirmed, and its reasoning somewhat expanded, and it is intimated finally, that the transfer might become operative, if, on partition, the land it covered fell to the defendant in execution. That case, then, is not in point beyond the force of its reasoning, if referring to different freeholds. It was not at all like this case, because a single estate was involved and no more.

Varnum v. Abbot, 12 Mass. 474, was a case where it does not appear there was more than one estate, though there were several conveyances of undivided interests, by the several tenants in common, in separate portions of it. No question was decided in that case beyond the validity of the conveyances as against the grantors, which was maintained. It was held, however, that separate actions were necessary against the disseizors of the various parts under those conveyances,--a doctrine which is certainly sound, but which puts the co-tenants to the very trouble the main doctrine in the former cases was apparently designed to prevent.

In Baldwin v. Whiting, 13 Mass. 57, the premises consisted of one tract, and the case was decided on the previous authorities. The same is true of Blossom v. Brightman, 21 Pick. R., 283, 285. In Nichols v. Smith, 22 Pick. R., 316, there was no decision on the question at all, the deed being held good against the parties to the suit.

Peabody v. Minot, 24 Pick. R., 329, is the first case involving different parcels, and no question was raised or discussed in the argument concerning any difference between the transfer of interest in one of several estates and in parts of a single estates. But in this case the court held practically, that an interest in one of two distinct estates could be sold. The inheritance consisted of two parcels in Methuen, and four in Bradford, the latter being parts of one farm. It does not appear whether the lands in the two towns had been used together or not. The lands in Methuen, and three of the small parcels in Bradford, were assigned for dower. The court held the dower lands should be considered as a separate estate, and might be dealt with by themselves, without reference to the rest, which were not subject to dower; but held also that a...