Foss v. Van Driele
| Decision Date | 26 October 1881 |
| Citation | 47 Mich. 201,10 N.W. 199 |
| Court | Michigan Supreme Court |
| Parties | FOSS v. VAN DRIELE. |
A tenant was practically evicted under proceedings in ejectment against him by a third person, and thereafter remained in possession under a lease from such person. Summary proceedings against him were then commenced for the possession by the original landlord.
Held that the attornment by the tenant to the plaintiff in the ejectment suit was not voluntary, and the real controversy in the present proceeding being between the two claimants to the title to the premises, judgment for complainant should be reversed.
Error to Kent.
Eben Smith, for plaintiff in error.
Grove & Harris, for defendant in error.
Van Driele commenced summary proceedings before a circuit court commissioner to obtain possession of a lot in the city of Grand Rapids and the action was appealed to the circuit court. The case was there tried before a jury who found in complainant's favor and the defendant brought error.
The case made by complainant was that he let the premises by oral lease to Mrs. Foss, in January, 1879, and that she entered under the lease and paid rent until the middle of April, 1880, and then refused to make further payment and also refused to quit after regular demand and notice.
The family was composed of three persons besides a hired girl: Mrs. Foss, a daughter in ill health and a son, Charles De Van, aged 30 years. These persons were joint inmates of the house from the beginning and formed one household. It was claimed by defendant that the lease from complainant was to her son Charles and that he furnished all the rent which was paid and that in negotiating with complainant and in looking over the premises prior to the lease and in paying rent she merely acted in part as agent for her son and in part as an interested member of the household. And there was evidence which tended to establish this position. There was also evidence tending to prove that the son was in fact the head of the family and that the possession of the other was included in his possession and in reference to legal proceedings to get possession was not separable therefrom.
It further appeared that on the eighth of March, 1880, Frances B. Gilbert brought ejectment against the said Charles De Van for the same premises and claimed them in fee, and that on the first of May thereafter he recovered judgment and two days later took a...
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