Fenton v. Miller

• Decision Date: 22 December 1892
• Citation: 94 Mich. 204,53 N.W. 957
• Court: Michigan Supreme Court
• Parties: FENTON v. MILLER et al.

53 N.W. 957

94 Mich. 204

FENTON v. MILLER et al.

Supreme Court of Michigan

December 22, 1892

Error to circuit court, Mackinac county; C.J. PAILTHORP, Judge.

Action of ejectment by Charles B. Fenton against Anna M. Miller, and Eva M. McKennon and Romaine I. Wendell, by James McNamara guardian ad litem. Judgment for plaintiff. Defendants bring error. Affirmed.

Norris & Norris and James McNamara, for appellants.

Henry Hoffman, (C. R. Brown & Son, of counsel,) for appellee.

GRANT J.

On December 21, 1851, one Abraham Wendell died seised in fee of the entirety of the lands here in controversy. He left seven children, named George, Theodore, Eliza, William, James Mary, and Josiah. At that time William, James, Mary, and Josiah were infants. James died in July, 1854, intestate. George died October, 1879, leaving a will, by which he conveyed his property to Theodore. Theodore was married in 1869, and died in November, 1879, leaving two children, the infant defendants in this case. Eliza was married to plaintiff in 1858, and died in January, 1885. Theodore, prior to the death of his father, had built a house upon the land at his own expense, which appears to have been regarded as personal property, and belonging to him. This house was occupied by the family as their homestead. After the death of the father, the children continued to live upon the land as one family, until 1869, except that Eliza left after her marriage to plaintiff. April 15, 1854, George and Theodore executed a deed to Eliza conveying to her all of their, and each of their, undivided interest, right, and title, as well in possession of as in expectancy of, in, and to the land now in dispute. This deed was recorded April 18, 1854. On the same date Eliza executed a deed to George and Theodore of certain lands in Indiana. The consideration expressed in the deed to Eliza was $275. On August 23, 1853, Theodore executed to Eliza a bill of sale of the house, the consideration for which was expressed as one dollar, and the natural love and affection he had and bore towards her, and for her better maintenance, support, and livelihood. December 14, 1881, William and his wife executed a deed to Eliza, in consideration of $500, conveying their undivided share of said property, and all their interest in the share to James, both in possession and expectancy, to the land in dispute. March 6, 1884, Eliza executed a deed to plaintiff, conveying her interest in this land. It thus appears that by deed and heirship plaintiff had the record title to 13-21 of this land, and the infant defendants to 8-21, subject to their mother's right of dower. Theodore, upon his marriage in 1869, moved into the house, and from that time until his death had the exclusive occupancy, and the defendants have occupied it since. Upon the death of Theodore, his widow, now the defendant Mrs. Miller, became administratrix of her husband's estate, and guardian of her children. On March 5, 1880, William, Eliza, Mary, and Josiah joined in a notice directed to and served upon Anna M. Wendell to surrender and deliver up possession of "lot No. 12, on the connected plat of the village of Mackinac, designated and described as the 'Wendell Homestead,' and remove therefrom on the 6th day of June, 1880." She did not vacate, and on June 23, 1880, the four began an action of ejectment against her and her children for possession of the undivided 20-21 of entire lot 12, which description covered more than the land in dispute, but included it. This case was put at issue by a plea of the general issue. This suit has never been tried, but is still pending and undetermined. After it was commenced, William, as already shown, conveyed his interest to Eliza. Josiah and Mary also afterwards released to the defendants their interest in this land in exchange for other land. It thus appears that none of the plaintiffs in that suit were longer interested in its prosecution, since they had all conveyed their interest. November 23, 1886, plaintiff filed a bill in chancery for the partition of lot 12, in which suit the present defendants were also made defendants. To this bill the defendant Anna interposed a plea of adverse possession, and the other defendants, by their guardian, answered, simply submitting their rights and interests to the protection of the court. The case was submitted upon pleading and proof, and the court held that the proceedings must be stayed until the complainant had established his title at law, and that the defendants were entitled to have the question of ouster and adverse possession tried in a court of law. This decision of the court below was sustained by this court. Fenton v. Steere, 76 Mich. 405, 43 N.W. 437. It was conceded in that case that complainant had established his cotenancy and right to partition, unless his title was defeated by ouster and adverse possession. Subsequent to that decree, and on September 17, 1890, plaintiff brought the present suit. The description of the premises in the original declaration in this case was the same as in the first ejectment suit and in the chancery suit. Upon the trial the plaintiff was permitted to amend his declaration by inserting a description by metes and bounds so as to cover the exact land in controversy, which was a part of lot 12, and to correspond with the proofs. Plaintiff was entitled to verdict and judgment upon his record title, unless defendants had shown an ouster and adverse possession for 15 years prior to bringing suit, provided he himself had shown an ouster within 15 years before bringing suit. Defendants claim that all the other heirs were ousted by Theodore in 1869, when he was married, and entered into possession of the premises, and the other heirs moved out, and that he was thereafter exclusively in possession under an asserted demand of the exclusive rights thereto. On the other hand, plaintiff admits the occupancy, but denies that it was adverse, or that Theodore ever claimed title.

1. Defendants first insist that the record of the deed from Theodore and George to Eliza was not evidence of its delivery, under the circumstances of this case. George was register of deeds, and Theodore was his deputy, at the time the deed was recorded. The deed was in the handwriting of Theodore, and the indorsement of the record upon the back of the deed was also in his handwriting. The court instructed the jury that the burden of proof as to delivery was upon the plaintiff; that the record of the deed by the grantor with the intent to pass title would be a sufficient delivery; that delivery is presumed from the record of a deed, and to avoid the effect of vesting title in the grantee the party questioning its delivery would be called upon by satisfactory evidence to explain away or rebut such presumption. The learned counsel for the defendants concedes that this is the general rule, but insists that it does not apply where the grantor, as register of deeds, records it, and, after its record, continues in possession of the land conveyed. We think this point is expressly ruled against defendants in Glaze v Insurance Co., 87 Mich. 349, 49 N.W. 595. It was there held that, where a husband executed a deed to his wife, and recorded it without her knowledge, the record raised a presumption of delivery. See, also, Patrick v. Howard, 47 Mich. 40, 10 N.W. 71 Did it conclusively appear by the proofs that the grantors retained this deed in their possession, and had never actually delivered it to the grantee, a different question might arise. But there was other evidence on the part of the plaintiff tending to show a delivery to Eliza. This testimony was controverted by the defendants. This evidence was submitted to the jury, the court again instructing them that possession of the deed by Eliza would be only prima facie evidence of title in her, but that they must determine the question of actual delivery from all the evidence on that point. The charge was correct, and was very full and fair.

2. The defendants gave evidence tending to show that Theodore, upon his marriage, wrote to his brothers and sisters, who were then living in the homestead, that he should bring his wife home with him, and desired that they should give him possession of the homestead, which, as above stated, they substantially did. This letter was not produced, and its contents were controverted by others of the family. But according to defendants' evidence, it did not contain any assertion that he was then owner of the land, or that he insisted or claimed any right hostile to theirs. Considering their ownership and relation, this letter, and the compliance of the other children with the request to leave, did not constitute an ouster. Heirs cannot in this manner be deprived of their ownership in land, the entirety of which has descended to them from their father. Until the heir so in possession has done or said something which is unequivocal notice to his coheirs that he claims the entire property as against them, there can be no ouster, and no adverse possession. There was a great deal of testimony bearing upon this question, and tending to support the claim put forth by each party. It is unnecessary to repeat it. The question was clearly one for the jury, and we are only concerned to determine whether any errors were committed upon the trial, which operated to the prejudice of the...