Cleland v. Clark

• Decision Date: 06 March 1900
• Citation: 81 N.W. 1086,123 Mich. 179
• Court: Michigan Supreme Court
• Parties: CLELAND v. CLARK et al.

81 N.W. 1086

123 Mich. 179

CLELAND v. CLARK et al.

Supreme Court of Michigan

March 6, 1900

Appeal from circuit court, Muskegon county, in chancery; Fred J Russell, Judge.

Bill by Daniel Cleland against John H. Clark and others. Decree for defendants, and plaintiff appeals. Affirmed.

Rolland J. Cleland (Arthur Lowell, of counsel) for appellant.

Dan T Chamberlain, for appellees Carpenter.

Charles B. Cross, for appellees Newville.

MOORE J.

This proceeding was commenced by a bill filed in aid of an execution. The complainant obtained a judgment against John H. Clark, and caused a levy to be made upon land in which he claimed Clark had an interest. He also claimed that Clark had fraudulently conveyed away some of the land, and he asked to have the conveyances set aside, and that he might be allowed to sell the land free from said conveyances. The circuit judge made a decree to the effect that 40 acres of said land when the levy was made, was occupied by Clark as a homestead, and was exempt from levy and sale upon execution, and that said land is now owned by the defendant Newville, and that the levy upon said land was a cloud upon the title, and required complainant to make a release of the levy. The decree also finds that Harriet Carpenter has a mortgage interest in the west 80 acres of the land in controversy, amounting to $728, for which amount she is given a lien upon said land. It also finds that Mrs. Carpenter entered into possession of the land under color of title, and occupied it in good faith, and made improvements thereon amounting to $700, for which she is given a further lien upon said lands. It further finds that there is due the complainant $523, for which, by reason of his levy, he has a lien upon all of the land, except the 40 acres decreed to be a homestead, subject to the lien of Mrs. Carpenter of $1,428, and authorized the complainant to sell said land, subject to said lien, to satisfy his debt. From this decree complainant appeals. None of the defendants appealed.

The solicitors for the defendants urge here, for the first time, that under the provisions of How. Ann. St. � 6108, complainant did not bring his proceeding in time (citing Edsell v. Nevins, 80 Mich. 151, 44 N.W. 1115), and that the bill should have been dismissed. The defendants have not appealed from the decree. No such claim was made in any of the answers, nor was it made in the court below. Issue was joined, and a full hearing had upon the merits. The question cannot, under such circumstances, be raised here for the first time.

It is the claim of the complainant that all of the land described in the bill of complaint should be subject to his levy, and he makes a long argument in support of his position. We are satisfied with the decree below in relation to the homestead of Mr. Newville, and to that part of the decree finding Mrs. Carpenter entitled to a mortgage lien upon the land, and do not deem it necessary to discuss those features of the case. The portion of the decree in relation to which we think discussion is necessary is that part of it giving Mrs. Carpenter a lien for the value of her improvements ahead of the lien established by the attachment and execution levy. It is the claim of the complainant that this part of the decree cannot be sustained, for two reasons: First, because Mrs. Carpenter is not an occupant under color of title and in good faith; second, because her title is by quitclaim deed (citing Peters v. Cartier, 80 Mich. 124, 45 N.W. 73); third, because by virtue of the statute (Comp. Laws, � 10,995) the measure of the sum to be paid for the improvements is not the cost of the premises, but the increased value of the premises. There is no doubt the rule is properly stated in the third reason as to the value of the improvements. The objection was not made in the court below to the testimony of the witnesses who testified as to the cost of the improvements, that they should not be allowed to testify as to the cost of the improvements, but should confine their testimony to stating how much the improvements enhanced the value of the land. So far as the record discloses, this objection is made here for the first time. The witnesses were sworn in open court. The record is in the narrative form. The witnesses testified as to the value of the improvements. They were not required to limit their testimony to the enhanced value of the land by reason of the improvements. We are not prepared to say the circuit judge reached a wrong conclusion as to the value of these premises.

As to the first of these reasons: The purchase...