Damm v. Damm

• Citation: 109 Mich. 619,67 N.W. 984
• Court: Supreme Court of Michigan
• Decision Date: 30 June 1896
• Parties: DAMM v. DAMM ET AL.

67 N.W. 984

109 Mich. 619

DAMM v. DAMM ET AL.

Supreme Court of Michigan

June 30, 1896

Appeal from circuit court, Wayne county, in chancery; Norman W Haire, Judge.

Action by Mary A. Damm against Amelia Damm and others. From a decree for plaintiff, defendants appeal. Reversed.

James H. Pound, for appellants.

Brooke & Spaulding, for appellee.

HOOKER, J.

Mary A Damm, aged 69 years, was the owner of an unincumbered life estate in certain premises. She was also owner of the fee of said premises, subject to a life estate in Amelia Damm, aged 43 years, which in turn was subject to a mortgage, to which mortgage Mary Damm's interest in fee was also subject. Mary Damm was in possession, and purchased the mortgage thereby paying it, to the extent of her liability thereon, as we held when the case was before us. 51 N.W. 1069. The question now before us is, what share is chargeable upon the expectant life estate of Amelia Damm? It is contended by counsel for the defendant Amelia Damm that her liability is limited to the payment of the interest, and that the principal is chargeable upon the remainder in fee, as between her and the owner in fee, who is Mary Damm. On the other hand, it is claimed that the mortgage was in existence when both of the estates were created, and that both are estates in expectancy; that the estate in possession is liable for neither; and that the two estates in expectancy should share in proportion to their respective values, the burden of the mortgage, principal and interest. It is conceded in the brief of counsel for the complainant that "the rule is uniformly laid down that, as between a life tenant in possession and a remainder-man, the life tenant is bound to pay the interest, and the remainder-man the principal" citing Cogswell v. Cogswell, 2 Edw. Ch. 231; 4 Kent Comm. marg. p. 74; 1 Washb. Real Prop. 129, and note, 319, marg. pp. 96, 257. And he cites us to authorities holding that the obligation upon the life tenant included arrearages of interest. It is urged, however, that this obligation is not limited to interest, where the life estate is expectancy, though no authority is cited in support of this contention; and we think there is little reason for a distinction between estates for life in possession, and those in expectancy, if, as counsel contend, the latter is obliged to protect the remainder-man in fee against arrearages of interest due from, but not paid by, his predecessor. It would seem that he should be satisfied with protection against the interest. Kent calls this a hard rule, though he says it was laid down in Penrhyn v. Hughes, 5 Ves. 99, cited by counsel. See 4 Kent, Comm. 75. The rule is doubted in Sharshaw v. Gibbs, Kay, 339, where it was said to have been unnecessary to lay down so wide a rule. And in Caulfield v. Maguire, 2 Jones & L. 141, Lord St. Leonard questions the rule, and the case of Tracy v. Tracy, 2 Brown, Ch. 128, which the case of Penrhyn v. Hughes professes to follow, saying: "I am not prepared to fix the defaults of every previous tenant for life on the last taken for life. It is as incumbent upon the reversioner in fee to look after the tenant in possession as it is on a tenant for life in remainder." This language means much. It substantially says that the owner of a life estate in expectancy does not owe the duty to the reversioner of preserving the estate until he acquires possession; that such duty rests upon the first life tenant; and that his estate is liable for the performance of such duty, which the reversioner may enforce, if he cares to do so (as can the second life tenant), but he cannot require the latter to do so, or to make good the default, if he himself does not choose to enforce his rights. Furthermore, this seems to imply that the life tenant in expectancy owes no duty...