Cummings v. Schruer
| Decision Date | 08 December 1926 |
| Docket Number | No. 96.,96. |
| Parties | CUMMINGS et al. v. SCHRUER. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Mason County; Hal. L. Cutler, Judge.
Suit by Georgianna Cummings and others against Dirk Schruer. Decree for defendant, and plaintiffs appeal. Reversed without prejudice and remanded, with directions.
Argued before the Entire Bench.Jackson, Fitzgerald & Dalm, of Kalamazoo, for appellants.
A. M. Johnston, of Ludington, for appellee.
The bill herein was filed by Georgianna Cummings, widow of James Cummings, deceased, claiming a dower right, and Bernice M. and George P. Cummings, daughter and son of the deceased, as sole heirs at law, to quiet title to certain land in Mason county, alleged to be in the possession of defendant, and also to have defendant account for use and occupation. Such a bill may not be filed against one in possession. Ejectment is the action. C. L. 1915, § 12302, subd. 4; Seymour v. Rood, 121 Mich. 173, 79 N. W. 1100;Chandler v. Graham, 123 Mich. 327, 82 N. W. 814;Tinker v. Piper, 149 Mich. 335, 112 N. W. 913;Dolph v. Norton, 158 Mich. 417, 123 N. W. 13;Miscotten v. Hellenthal, 162 Mich. 402, 127 N. W. 324. We omit further citation. The bill gave the court no jurisdiction.
Defendant, however, appeared, alleged adverse possession for the statutory period, and asked that his title be quieted as against the claims of plaintiffs. This gave the court jurisdiction. Proofs were taken and a decree entered dismissing the bill of plaintiffs for want of equity and quieting defendant's title against all claims of plaintiffs. Plaintiffs appealed.
In the circuit, the dower right of Georgianna Cummings was made to appear. The decree appealed from not only makes no mention of such dower right, but cuts off all rights of plaintiffs by reason of defendant's adverse possession. The dower right of Georgianna Cummings did not arise until the death of her husband in April, 1916.
James Cummings was the last recorded owner in the regular chain of title, and his deed, of record, antedated claimed possession by defendant. Defendant claims he came into possession of the land in 1908, under warranty deed from a purchaser from the state under tax sale, but does not assert any title by virtue of such deed or under tax deeds to himself from the state, because notice was not given to the last recorded owner of right of redemption.
The land in 1908 was wild, had been cut over, was studded with stumps, and grown up to poplars, willows, and brush. At that time, no road led to it. Just when defendant first exercised acts showing adverse possession does not clearly appear.
The evidence relative to the essentials of adverse possession during the statutory period is unsatisfactory, but we find it unnecessary to determine the question of adverse possession. At the time of the death of James Cummings, defendant had not acquired title by adverse possession, for, at that time, he had only claimed right of possession for about 8 years. The right of Georgianna Cummings to her dower interest was not cut off by defendant's possession up to the time of the death of James Cummings, and possession by defendant since the dower right...
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