Campau v. Godfrey

• Decision Date: 11 January 1869
• Citation: 18 Mich. 27
• Court: Michigan Supreme Court
• Parties: Daniel J. Campau v. Joseph Godfrey et al

18 Mich. 27

Daniel J. Campau v. Joseph Godfrey et al

Supreme Court of Michigan

January 11, 1869

Heard October 15, 1868; October 16, 1868 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Appeal in chancery from Wayne circuit.

The bill in this case was filed to set aside a sheriff's deed of certain real estate executed to two of defendants as void, and as constituting a cloud upon complainant's title.

Godfrey, Dean & Brow, having a small demand against Theodore J. Campau, put it in judgment and caused execution to be levied on his undivided one-ninth interest in certain lots in Detroit, which constituted a part of the lands belonging to the heirs of Joseph Campau, of whom he was one. This interest was sold to the plaintiffs in execution, who afterwards assigned their certificate of purchase; and their title under it was acquired by Frederick E. Driggs and Milton H. Butler. T. J. Campau suffered the time for redemption to expire without redeeming. Meanwhile the heirs of Joseph Campau, excepting the children of James J. Campau, who owned an undivided one-ninth, went on and made voluntary partition among themselves of all the lands belonging to the estate, and set off to Daniel J. Campau the lots in which Theodore's interest had thus been sold on execution. Daniel J. Campau then filed his bill in equity to have the execution sale declared void on the grounds:

1. That one tenant in common can not sell his interest in the part of the property owned in common, because of the injurious effect it might have upon the interests of his co-tenants in preventing such a partition as they might otherwise have obtained. And this being so, the same reasons would preclude an execution sale of the interest of one in a part of the lands.

2. That the levy and sale in this case were excessive.

3. That T. J. Campau was induced not to redeem from the execution sale by negotiations which were taking place between him and the plaintiff's attorney concerning it.

The case was heard on pleadings and proofs, and the prayer of the bill was granted.

Decree of the court reversed, and the bill dismissed; and defendants recovered their costs in both courts.

Walker & Kent and T. Romeyn, for complainants:

1. The sale under said execution was void as against complainant and the other heirs of said Joseph Campau, deceased, because it was an attempt to sell the interest of Theodore, who was one of several tenants in common in a specific and undivided portion of the estate owned in common.

One tenant in common can not convey his interest in a specific parcel of the land held in common; and such conveyance is void, or, at least, voidable, by the co-tenants, though some of the cases hold that it is good against the party conveying: 4 Conn. 395; 5 Id. 363; 3 Ga. 492; 24 Me. 482; 12 Id. 198; 14 Grat. 82; 11 Grat. 340; 2 Robinson 273; 3 Stockton N. J., 548; 10 N. H., 246; 15 Id. 449; 37 Id. 134; 44 Id. 413; 38 Id. 127; 12 Id. 563; 9 Mass. 34; 12 Id. 348; 12 Id. 474; 13 Id. 56; 24 Pick. 329; 22 Id. 316; 1 Washb. Real Estate, 417, and note; 2 Kent's Com., 368; 2 Greenlf. Cruise, 410, and note.

The only authorities to the contrary, that we have been able to find, are: 2 Ohio 110; 6 Ohio Cond., pp. 468, 161; 2 Harris and Johnson, 421.

In the following cases it is held that the principle above stated, in regard to a sale by one tenant in common applies with the same force to a levy upon the interest of one tenant in common in a specified portion of the estate. Indeed, none of the authorities make any distinction between the case of a levy and a voluntary conveyance: 3 Vt. 399; 9 Id. 138; 2 Id. 244; 2 Id. 243; 28 Id. 183; 18 Me. 229; 21 Pick. 283.

It will be attempted to distinguish the case at bar from the most of those cited, because in them the attempt was to convey a specific portion of an entire tract held in common, and in this case the levy was upon several of a large number of parcels. No such distinction is found in the books, and there is no foundation in principle for it.

But three of the cases cited were cases of conveyance by one tenant in common of his interest in one or more of several parcels held in common, and, in this respect, correspond with the case at bar: 12 N. H., 563; 24 Pick. 329; 2 Harris and Johns., 421.

2. The levy in question was void, because excessive. Property worth, estimating only a one-ninth interest, from $ 8,000 to $ 10,000, was sold for less than $ 200. If any case can justify the setting aside of a levy, on account of its excessive character, this is one.

3. If said execution sale and the deed thereunder, conveyed any interest to defendants Driggs and Butler, we ask the aid of this court to enable us to redeem on such terms as shall be equitable.

Theodore Campau, whose duty it was, intended to redeem, and was kept therefrom by mistake and a natural reliance on the honest assurances of the attorney who recovered the judgment, and who was supposed by both to control the redemption. Complainant was guilty of no negligence in relying upon Theodore's promise, and it would be very hard if he must suffer so largely from the negligence of another. There is no doubt of the power of a court of equity to allow the redemption we ask; and certainly such a redemption would be but equitable: 1 Johns. Ch., 502; 6 B. Mon., 384; 4 N. Y., 554; 33 Ala. 494.

John J. Speed and D. C. Holbrook, for defendants:

1. Where one complains of an excessive levy on his lands, his duty is to apply for relief to the court from whence the execution issued: Walk. Ch., 344; 23 Ill. 503; 2 Ind. 99.

The complainant claims that the estate of Joseph Campau was inherited by his heirs as an entirety, and subject to a partition; that the interest of Theodore J. Campau, in separate parcels of the property, could not be levied upon, sold and conveyed, prior to such partition; that the sheriff's deed to these appellants may be avoided by complainant, to whom Theodore released his interest subsequent to the sale under the execution; and that these appellants may be required to convey to him any interest that they may have acquired under the sheriff's deed.

Had the estate consisted of a single parcel, the conveyance by the sheriff of any specific portion thereof, or of Theodore's interest in any specific portion described by metes and bounds, might have been avoided by the other heirs: 1 Hill. Real Prop., 593, 596; 9 Mass. 34; 12 Id. 349. But the present case is a different one.

Our statute recognizes no distinction as to the number and connection of their owners between estates inherited and those acquired by purchase: 2 Comp. L., § 2627.

All real property of the debtor, except expressly exempted, is subject to sale on execution: 2 Comp. L., § 3119; 17 Mass. 81; 2 Conn. 244; 2 Har. and Johns., 42; 1 Id. 100.

Separate parcels shall be exposed for sale, and the debtor may redeem such parcel, or his undivided interest therein: 2 Comp. L., §§ 3121, 3127, 3134. See, also, L. 1867, 97, 133.

It does not follow, necessarily, that a fair division of the estate can not now be made in consequence of the sale, even if it be held that the heirs took the property subject to a division. The lots are as valuable as ever for the purpose of occupancy or sale. In partitioning the estate, these lots might be set off to Theodore Campau, and an equal amount in value allotted to the other heirs. If partition can not otherwise be made, these lots may be sold and the proceeds divided. The other heirs must receive their fair share, but no more; but if they receive it in value they can not complain. Any division made must be based upon the value of each parcel.

We thus see that a levy upon and sale of specific portions of a tract might operate so as to prejudice the co-tenants by lessening the value of the entire tract; but a levy upon the entire parcel does not affect its value, nor prevent the other heirs from receiving the same in value that they otherwise would have received. The most that can be said is that this levy introduces another interest to be protected.

Christiancy, J. Cooley, Ch. J., Graves, J., Campbell, J. concurred.

OPINION

Christiancy J.:

The bill in this case was filed to remove a cloud from the complainant's title to an undivided ninth of lots ninety-three and ninety-four, in section one, and lot sixty-seven, in section two, of governor and judges' plat of the city of Detroit. Complainant claims title to this one-ninth as the grantee of his brother, Theodore J. Campau, one of the heirs of Joseph Campau, deceased--complainant owning another ninth as such heir.

Joseph Campau, the ancestor, died intestate July 23d, 1863, seized of this and a large amount of other real estate, situate mostly in Wayne county, but a large amount of it in many other counties in this state--the whole amounting in value to some two millions of dollars.

After the levy and sale presently to be noticed, but before the time of redemption had expired, all the heirs of Joseph Campau, except the children of James J. Campau, deceased (one of the heirs of Joseph), owning the one-ninth, joined in the attempt to make an amicable partition among themselves of all the real estate of their ancestor, Joseph Campau, wholly ignoring the children of said James J. and their interest; and for the purpose of effecting this partition, mutually executed and delivered deeds purporting to release and convey to each other, in fee and in severalty, entire parcels of said estate and specific blocks and lots by number and description, thus purporting to divide up the whole estate in the same manner as if they had owned the whole, instead of the eight-ninths only.

The lots here in question were thus released and purported to be conveyed in fee and in severalty to the...