Farwell Brick, Tile & Clay Shingle Co. v. McKenna

• Decision Date: 05 June 1891
• Citation: 86 Mich. 283,48 N.W. 959
• Parties: FARWELL BRICK, TILE & CLAY SHINGLE CO., Limited, v. MCKENNA et al.
• Court: Michigan Supreme Court

48 N.W. 959

86 Mich. 283

FARWELL BRICK, TILE & CLAY SHINGLE CO., Limited, v. MCKENNA et al.

Supreme Court of Michigan

June 5, 1891

Appeal by both parties from circuit court, Clare county, in chancery.

Bill in equity by the Farwell Brick, Tile & Clay Shingle Company Limited, against Edward McKenna and James McKenna, to enjoin an ejectment suit, and to quiet title to certain land. From a decree a warding one-half to each party both appeal.

Bunker & Carpenter, for complainant. C. W. Perry, for defendants.

GRANT J.

Defendant Edward McKenna, in 1879, owned 40 acres of land, known as the S.W. 1/4 of S.E. 1/4 section 24, township 17 N., range 5 W., Clare county, Mich. He and his wife lived upon the premises until the fall of 1882. They had no children. They left the premises in 1882, and removed to a neighboring village, where they lived for about two years when she left her husband, and has not since lived with him. Edward subsequently returned, and occupied this land until he deeded 32 acres of it to complainant. About 12 acres were cleared, and Edward lived in a small building erected thereon. The rest of the land was wild, partly swamp, and partly timbered. On March 23, 1888, the complainant made a parol agreement with Edward for the purchase of 32 acres of this land, on which were deposits of clay. Edward made out the deed, which was deposited in escrow. The money was paid April 21, 1888, except $200, which was to be retained until Edward procured from his wife a release of her dower interest. Complainant took possession of the land in March and erected buildings and machinery for the manufacture of brick, tile, and shingles. At the commencement of this suit he had expended $3,700, and at the time of the hearing its entire investment amounted to about $7,000. September 21 1888, Edward and his wife conveyed the entire 40 acres by quitclaim deed to defendant James McKenna, who immediately thereafter instituted an action of ejectment against complainant to recover possession. This deed was made without consideration, and for the sole purpose of having James institute proceedings to recover the entire premises, and, if successful, to reconvey them to Edward and his wife. Upon the execution of the deed to complainant, Edward fenced in his eight acres, and erected a new house thereon. The sole question in the case is, did Elizabeth McKenna, the wife of Edward, have homestead rights in these premises? The prayer of the bill is for a perpetual injunction of the ejectment suit, and the release by James McKenna of his title to the 32 acres. The circuit court found the value of the 40 acres at the time of the deed to complainant to be $1,800, and gave to the defendant the east half and to the complainant the west half. Complainant appeals. The wife had not occupied these premises for six years. She had left her husband for four years, and refused to live with him. She alleges no legal excuse for leaving him, and under the record...