Everts v. Beach

• Decision Date: 12 January 1875
• Court: Michigan Supreme Court
• Parties: Caleb Everts v. Levi C. Beach

31 Mich. 136

Caleb Everts v. Levi C. Beach

Supreme Court of Michigan

January 12, 1875

Heard January 5, 1875

Error to Oakland Circuit.

Judgment reversed, with costs, and a new trial granted.

A. C Baldwin, for plaintiff in error.

W. B Jackson. for defendant in error.

OPINION

Graves, Ch. J.:

Beach as guardian sued Everts to recover on account of his alleged use and occupation of an undivided two-thirds of a parcel of land said to have been owned by Everts and the wards of Beach as tenants in common. The case was tried before a jury, and Beach recovered. The main facts were briefly as follows: In 1842, Lydia Webster, the mother of the wards of Beach, received from her father conveyance of the parcel of land in question, and with her husband, William R. Webster, went into possession and occupied it until her death in 1863. These parties had three children, the infants before mentioned and another son, Riley Webster, who became of age in 1865. After Mrs. Webster's death in 1863, Mr. Webster continued to occupy the premises until 1865, when Riley Webster, the elder son, who as before stated had become of age, conveyed his interest, which was assumed to be an undivided third, to the plaintiff in error. Mr. Webster, the father, then assumed to let upon shares to Everts the undivided interest of the two younger sons, and Everts went into possession and occupied the land, and during the years 1865, 1866, and 1867, he delivered to Mr. Webster, the father, the stipulated portion of the crops. After 1867, he paid nothing. In December, 1870, Mr. Beach was appointed guardian by the probate court, for the two minors, and some time afterwards brought this action.

The sole ground of action was the occupation by the plaintiff in error of the lands claimed in common, and no aid was sought from the statute which gives an action to one tenant in common against another for having received more than his proper proportion of the rents and profits.--Comp. L., § 4308.

The recovery was allowed upon evidence that the plaintiff in error had the entire occupancy, and evidence of what the use of the undivided shares of the infants was considered worth.

I think the facts were not adequate to maintain the action, and that the court erred in deciding otherwise. The right of each to occupy is one of the legal incidents of a tenancy in common and neither tenant is excluded by the circumstance that the other does...