Desroches v. McCrary, 69.

• Decision Date: 07 October 1946
• Docket Number: No. 69.,69.
• Citation: 24 N.W.2d 511,315 Mich. 611
• Parties: DESROCHES v. McCRARY.
• Court: Michigan Supreme Court

315 Mich. 611

24 N.W.2d 511

DESROCHES

v.McCRARY.

No. 69.

Supreme Court of Michigan.

Oct. 7, 1946.

Appeal from Circuit Court, Wayne County; Clyde I. Webster, judge.

Summary proceedings by Philip W. DesRoches against John McCrary for recovery of possession of premises, begun before a circuit court commissioner and appealed to circuit court. From a judgment for plaintiff, defendant appeals.

Affirmed.

Before the Entire Bench.

Etheleen M. Stevens, and Schulman & Schulman, all of Detroit (Meyer Weisenfeld, of Detroit, of counsel), for appellant.

Bishop & Babler, of Detroit, for appellee.

DETHMERS, Justice.

This is review of judgment for plaintiff for recovery of possession of premises in summary proceedings, begun before a circuit court commissioner, appealed to the circuit court and tried before the court without a jury.

Plaintiff, Philip W. DesRoches, and his brother, Donald W. DesRoches, who has not joined in these proceedings, are owners of the premises in question, as tenants in common, by inheritance from their father under whom defendant came into possession as a tenant at will. Defendant continued in such possession for several years after plaintiff and his brother became the owners, occupying it with his wife, son, sister and the latter's daughter. On July 9, 1945, the defendant moved his family and household furnishings, except one bedroom suites, to a home recently purchased by him, at the same time advising plaintiff's caretaker that his sister and her daughter were going to stay in the premises. The sister continued occupancy and had the telephone, gas and electricity billings changed from defendant's name to hers. Defendant testified that since moving to his new home, for reasons of convenience to his professional work, he has stayed overnight at the premises in question with his sister about twice a week.

On July 28, 1945, plaintiff caused to be served a notice to terminate tenancy for the reason therein stated, that defendant had moved out of the premises and sublet the same to other persons.

Defendant contends that, although he has moved his family and furnishings to another home, the premises in question still constitute his own dwelling within the meaning of section 6(a) of the office of price administration rent regulations, 8 Fed.Reg. 7322, 7326, which provides:

‘So long as the tenant continues to pay the rent * * * no tenant shall be removed * * * unless * * *.

‘(4) * * * The tenant's lease or other rental agreement has expired or otherwise terminated, and at the time of termination the occupants of the housing accommodations are subtenants or other persons who occupied under a rental agreementwith the tenant, and no part of the accommodation is used by the tenant as his own dwelling.’

and that, therefore, eviction may not be had.

The trial judge held that the premises are not the defendant's own dwelling. In Schadt v. Brill, 173 Mich. 647, 654, 139 N.W. 878, 881, 45 L.R.A., N.S., 726, this court defined a dwelling house as “the house in which a man lives with his family; the apartment or building, or group of buildings, occupied by a family as a place of residence.” The term ‘dwelling’ has been defined as a habitation for man usually occupied by a person lodging in it at night. State v. Warren, 33 Me. 30, 31. Were the premises in question the defendant's ‘own dwelling’ as that term is employed in the above rent control regulations? It seems clear that the defendant's own dwelling is the home purchased by him and into which he moved his family and furniture. Without deciding whether a man can have more than one dwelling, it is manifestly not the intent and purpose of the rent control regulations to protect a tenant in the possession of more than one dwelling. It must be held that such use as the defendant made of the premises in question did not constitute the same his own dwelling within the protective provisions and meaning of the above OPA rent reguiations.

The second question presented is whether summary proceedings to recover the possession of land may be brought by one of two tenants in common without the joinder of his cotenant as a party plaintiff.

The statute under which this action is brought provides in part that: ‘The person or persons entitled to the possession of the premises, his or their agent or attorney, may make complaint in writing.’ 3 Comp.Laws 1929, § 14976, Stat.Ann. § 27.1987.

The action involves the right to possession alone and the question of title is not included. Is plaintiff, as one of two tenants in common, entitled to possession as against everyone but his cotenant?

We quote from the syllabus in Everts v. Beach, 31 Mich. 136, 18 Am.Rep. 169, as follows: ‘A tenant in common of lands cannot recover of his cotenant for the use and occupation by the latter of the lands claimed in common, in the absence of any express promise; the right of each to occupy is one of the legal incidents of such tenancy, and it pervades the whole land; and one is not excluded by the failure of the other to occupy, but whatever he occupies in such case, is in his own right, and not under his cotenant.’

In the case of Heilbron v. St. Louis Southwestern Ry. Company of Texas, 52 Tex.Civ.App. 575, 113 S.W. 610, it was held that no one can complain of the exclusive...