Campau v. Campau
| Decision Date | 14 May 1872 |
| Citation | 25 Mich. 127 |
| Court | Michigan Supreme Court |
| Parties | James J. Campau and others v. Theodore J. Campau and others |
Heard April 30, 1872
Appeal in Chancery from Wayne Circuit.
Court awarded fifty dollars damages in each of the three cases.
D. C Holbrook, for complainants.
Theodore Romeyn, for defendants.
Graves, J., did not sit in this case.
By a decree of the circuit court in chancery for the county of Wayne, in the above entitled cause, a partition of the real estate of the late Joseph Campau, deceased, was made among his heirs (which was affirmed by this court, 19 Mich. 116), by which the shares of the complainants (who were the children of James J. Campau, one of the sons of the deceased) were set off to them jointly and in common, subject to the dower of their mother (widow of James J. Campau, and now, by a subsequent marriage, Mrs. Yates), the shares of all the other heirs of said Joseph Campau, deceased, being set off to them in severalty.
Subsequent to this decree, the portion so set off to complainants, subject to their mother's dower, was partitioned among them by a decree of the same court, by which the share of each of them was set off in severalty; and the dower of the widow was assigned and set off to her. In the last named suit the widow (then Mrs. Yates), who had become the trustee of her son, Joseph, was complainant, and Theodore J. Campau (one of the administrators mentioned below), who had purchased the undivided share of one of her sons, was made a defendant, but only in his individual capacity.
The decrees in both cases required possession to be delivered to the parties, respectively, of the shares set off to each by the decree; but, though Theodore J. and Dennis J. (sons of Joseph, deceased) were made parties defendant to the original bill, they were made such only in their individual capacity as heirs, and not as administrators.
Prior to, and at the time of, these partition suits, they were, and still continue to be, administrators on the estate of Joseph Campau (the common ancestor through whom all the heirs claimed), and, as such administrators had, prior to the presentation of the petitions mentioned below, taken possession of the real estate set off to the petitioners on partition, which they still claim to hold in that capacity; and having refused to give up the possession, the petitioners, Mrs. Yates (the widow), and Elizabeth Brown, and Alexander T. Campau, (heirs, to whom, as defendants in the original bill of partition, shares had been assigned), severally presented their petitions in the original partition cause, to the circuit court in chancery, praying for an order requiring said Theodore J. and Dennis J. to deliver possession, and that a writ of possession be issued for that purpose.
To these petitions, Theodore J. Campau and Dennis J. Campau put in their answer, setting up--among other things not now relied upon or necessary to be noticed--that they are the administrators on the estate of said Joseph Campau, deceased; that as such administrators, appointed and qualified years ago, they have a right to the possession of the real estate of the decedent, and that they took possession, and still hold it, in that capacity; that their accounts as administrators have not been settled, but are now contested in the probate court for the county of Wayne, and that said probate court has made no order for the delivery over by them of said estate. They insist that petitioners have no right to the possession of the real estate as now situated, and that the circuit court in chancery is not the proper tribunal for settling the question and making the order, and that this is not the proper form of relief.
The only question necessary to the decision of the case is whether the administrators, at the time of the filing of the petitions (November and December, 1871), had the right to possession of the real estate, as against the...
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