Dolby v. Dillman

• Decision Date: 04 April 1938
• Docket Number: No. 52,Oct. term, 1937.,52
• Parties: DOLBY et al. v. DILLMAN, State Highway Commissioner, et al.
• Court: Michigan Supreme Court

283 Mich. 609

278 N.W. 694

DOLBY et al.

v.DILLMAN, State Highway Commissioner, et al. ^*

No. 52, Oct. term, 1937.

Supreme Court of Michigan.

April 4, 1938.

Suit by Horace L. Dolby and others against Grover C. Dillman, state highway commissioner for the state of Michigan, and others to establish title in the plaintiffs to certain realty, free from the claims of one S. W. Brooks, trustee, and his successors and assigns to whom the realty had been deeded subject to a reversion upon its use for purposes other than railroad purposes. From an adverse decree, the plaintiffs Horace L. Dolby and Alice A. Dolby, appeal.

Affirmed.

POTTER, WIEST, and SHARPE, JJ., dissenting.

Appeal from Circuit Court, Washtenaw County, in Chancery; Lester S. Moll, Judge.

Argued before the Entire Bench.

Robert J. Peretto and E. Samuel Taylor, both of Detroit, for appellants.

Raymond W. Starr, Atty. Gen., and Edmund E. Shepherd, Asst. Atty. Gen., for appellee State Highway Commissioner.

BUSHNELL, Justice.

In 1912 plaintiffs Dolby and wife conveyed by warranty deed to F. W. Brooks, trustee, his successors and assigns, a strip of land 1,400 feet in length, more or less, varying in width from 35 to 45 feet, lying north of and adjacent to the fence of the north line of the highway and located in the east half of the southwest quarter of section 1, in the township of Ypsilanti, Washtenaw county. This deed contained the following provisions:

‘Said strip of land shall be used for railroad purposes only and ceasing to be used for such purposes shall revert to said parties of the first part, their heirs or assigns.’

In 1916 Dolby and wife, by warranty deed, conveyed to plaintiffs Parke and wife all of the east half of the southwest quarter of section 1, etc., excepting a parcel in the southwest corner thereof, containing about 16 rods, and excepting the strip of land deeded to Brooks. The Dolby-Parke deed contained the following provision:

‘Said strip of land is to be used for railroad purposes only, and ceasing to be used for such purposes, shall revert to said second parties, their heirs and assigns.’

We might state here that the record does not contain copies of the deeds in question and we are confined to quotations in the record, the opinion of the trial judge, and beiefs of the parties, which are somewhat conflicting.

In 1926 Parke and wife conveyed certain lands to Dolby and wife which may or may not be the same as those conveyed in 1916, but the conveyance of 1926 does except a strip of land north of the fence on the north line of the highway ‘extending across the entire front of the land of said parties of the first part on section one, said strip of land being forty-five feet in width.’

This deed contained the following provision:

‘Said strip of land is to be used for railroad purposes only, and ceasing to be used for said purposes, shall revert to said second parties, their heirs and assigns.’

In 1930 Brooks conveyed the strip of land in question to Grover C. Dillman, then state highway commissioner.

Plaintiffs Dolby and wife, by bill of complaint filed November 25, 1931, and amended bill filed May 7, 1932, claim that title reverted to themselves by reason of nonuse of the strip for railroad purposes and by reason of the terms of the conveyance of 1930. They also claim title by adverse possession and charge that defendants state highway commissioner and Washtenaw county road commissioners and their contractor are interfering with their peaceful possession of the strip. They seek a decree establishing title in themselves, free of the claims of Brooks, his successors and assigns. Just how the remaining plaintiffs, whose names are printed on appellants' brief, come into the case we are not informed, but, whatever, their interests may be, they have not joined in the prosecution of this appeal.

The trial court, by decree entered August 4, 1932, dissolved the temporary injunction previously issued and dismissed plaintiffs' bill of complaint.

While the language used in the various conveyances may differ somewhat, reverter clauses in deeds are generally susceptible of classification. Appellants apparently take the position that the provisions before us created a determinable fee or ‘conditional limitation.’ It would be more accurate to describe them as creating a fee subject to divestment by re-entry for breach of condition; in other words, a fee upon condition subsequent. Weber v. Ford Motor Co., 245 Mich. 213, 222 N.W. 198;Rhines v. Consumers' Power Co., 259 Mich. 236, 242 N.W. 898;Avery v. Consumers Power Co., 265 Mich. 696, 253 N.W. 189.

In ascertaining the rights of the parties, we will not determine whether Brooks' or his cestui que trust's failure to use the strip for railroad purposes between 1912 and 1916 constituted a breach of condition, inasmuch as this point, although presented in the amended bill of complaint and restated by appellants in their statement of questions involved, is not briefed. A mere statement of a position without argument and citation of authority in support thereof is insufficient to present the matter for the consideration of an appellate court. Michigan Court Rule No. 67, and Johns v. Land & Lumber Co., 268 Mich. 675, 256 N.W. 592. The same observations apply to plaintiffs' claim of adverse possession which, although mentioned in the amended bill of complaint, is not supported by proof.

Plaintiffs' claim that no attempt was made in the deed of 1916 to assign the right of re-entry of Parke and wife would be correct if the language in this deed had gone no further than to except the strip previously conveyed to Brooks. See Reynolds v. Gaertner, 117 Mich. 532, 76 N.W. 3. But grantors did more. They said: ‘said strip of land * * * ceasing to be used for said purposes, shall revert to said second parties, their heirs and assigns.’

As the deed thus stands in this record, the language constituted an attempt to assign the right of re-entry; and not only did the assignment fail as to Parke and wife, but the right was thereby extinguished. Halpin v. School District, 224 Mich. 308, 194 N.W. 1005;County of Oakland v. Mack, 243 Mich. 279, 220 N.W. 801;Fractional School District v. Beardslee, 248 Mich. 112, 226 N.W. 867.

Plaintiffs contend that our holding in the Halpin Case is erroneous and the definition of executory limitation given therein is incorrect.

Notwithstanding attacks made upon the rule stated in Halpin v. School District, supra, it has been adhered to in County of Oakland v. Mack, Fractional School District v. Beardslee, and Avery v. Consumers Power Company, supra.

This court has not blindly adhered to the doctrine of stare decisis. See Hilt v. Weber, 252 Mich. 198, 223, 233 N.W. 159, 71 A.L.R. 1238. But the situations in the various ‘relicted land’ cases there discussed were altogether different from those presented in the several ‘reverter’ cases, supra.

In 1931, the Legislature of this state abolished the ‘reverter’ rule as to subsequent conveyances by the enactment of Act No. 219, Pub.Acts 1931, which reads:

‘The reversionary interest in lands conveyed on a condition subsequent may be granted, conveyed, transferred or devised by the owner of such interest, and by the subsequent grantees or devisees thereof, either before or after the right of re-entry becomes effective: Provided, That this act shall not affect any such interest created before it takes effect.’ Mason's 1935 Supplement, § 12966-2, Michigan Stat.Ann., vol. 19, § 26851.

This legislative enactment is an adequate solution of the ‘reverter’ problem, and little argument can be advanced in support of a ‘judicial repeal’ of the proviso of the quoted act by overruling the Halpin Case. Certainly far less damage will result from the operation of the proviso of the 1931 statute than from a determination that the Halpin Case was wrong in principle and should be overruled.

In McEvoy v. City of Sault Ste. Marie, 136 Mich. 172, 98 N.W. 1006, 1007, the court said:

‘Before this court overrules a decision deliberately made, it should be convinced not merely that the case was wrongly decided, but also that less injury will result from overruling than from following it.’

A recognized rule of property ought not to be overturned without the very best of reasons. Lewis v. Sheldon, 103 Mich. 102, 61 N.W. 269;Pleasant Lake Hills Corporation v. Eppinger, 235 Mich. 174, 209 N.W. 152.

Plaintiffs attempted to show that the use of the word ‘second’ in this conveyance was an error; that the word should have been ‘first.’ The opinion of the trial judge omitted consideration of this claim of mutual mistake, and properly so, because it is neither raised nor referred to in the original or amended bill of complaint. Moreover, this claim is not pursued in the briefs and, therefore, must be held to have been abandoned.

Appellant urges that we construe the language of the deed of 1916 in connection with certain purchase-money mortgages from Parke to Dolby, one of which mortgages was executed simultaneously with said deed. They argue that the express exclusion of the strip from these mortgages shows that Dolby and wife never intended to assign their right of re-entry to Parke and wife. However, an examinationof the record indicates that the exclusion of the strip from the mortgages is a recognition of the previous conveyance of the fee title in the same by Dolby to Brooks.

The decree dismissing plaintiffs' amended bill of complaint is affirmed, with costs to appellees.

BUTZEL, CHANDLER, and NORTH, JJ., concurred with BUSHNELL, J.

NORTH, Justice (concurring).

Since the question was first presented to this court, it has been the law of this state that an attempt by the possessor of a conditional right of reverter to convey the same before breach of condition does not convey any interest in the realty to the grantee named, because the right before breach cannot be conveyed; and, further, such an attempt to convey extinguishes the right itself. This is a law of...