Donovan v. Ward

• Decision Date: 02 June 1894
• Court: Michigan Supreme Court
• Parties: DONOVAN ET AL. v. WARD ET AL.

59 N.W. 254

100 Mich. 601

DONOVAN ET AL. v. WARD ET AL.

Supreme Court of Michigan

June 2, 1894

Error to circuit court, Marquette county; John W. Stone, Judge.

Action by Catherine Donovan and Elizabeth Duyore against Mary Ward and Louisa Ward, executrices of the will of William Ward deceased, Alexander Johnson, and Sali Matson. Judgment for plaintiffs, and defendants bring error. Affirmed.

Clark & Pearl, for appellants.

Charles R. Brown & Son, for appellees.

HOOKER J.

The plaintiffs, with others, inherited the lands in controversy from their mother. While yet infants of the ages of 20 and 19 years, respectively, and upon April 16 1883, they united with the other owners in a quitclaim deed to one Peter O'Hair upon a nominal consideration of one dollar, but in truth to enable O'Hair to secure John Connor and Peter Rassmussen, by mortgage, for signing the bail bond of plaintiffs' brother. Such mortgage was given, and upon its foreclosure in chancery Rassmussen became the purchaser, receiving a commissioner's deed on May 26 1885. On July 2, 1885, Rassmussen conveyed to William Ward, through whom defendants claim title. Ward and his successors have had exclusive possession of the premises since August, 1885. This action was begun about July 15, 1893. It was tried before the court without a jury, and comes to this court upon exceptions to the judge's finding of fact and law, the appeal being taken by the defendants.

But two questions are discussed in the brief of defendants' counsel: (1) Whether plaintiffs are not estopped from asserting title; (2) the statute of limitations. The finding of fact shows that both plaintiffs learned of Ward's purchase of the lot very soon after it was made at which time Catherine was over and Elizabeth under the age of 21 years; that there was no evidence that either took any action to disaffirm the deed to Ward, or in any way claimed that it was invalid, until April 6, 1893, when they demanded possession. No improvements were made by Ward or his representatives, nor did either plaintiff do anything indicating an affirmance or ratification of their deed. Under these findings we must hold, in conformity to the settled rule in this state, that the action was seasonably brought, if within the period prescribed by the statute of limitations. Prout v. Wiley, 28 Mich. 164; Tyler v. Gallop's Estate, 68 Mich. 187, 35 N.W. 90; Sims v. Everhardt, 102 U.S. 300. It is contended on behalf of the defendants that this action is barred, under subdivision 1 of section 8698 of Howell's Annotated Statutes, limiting to five...