Hardy v. Burroughs

• Citation: 251 Mich. 578,232 N.W. 200
• Decision Date: 03 October 1930
• Docket Number: No. 93.,93.
• Parties: HARDY et al. v. BURROUGHS et al.
• Court: Supreme Court of Michigan

251 Mich. 578

232 N.W. 200

HARDY et al.

v.BURROUGHS et al.

No. 93.

Supreme Court of Michigan.

Oct. 3, 1930.

Appeal from Circuit Court, Genesee County, in Chancery; Edward D. Black, Judge.

Suit by Walter Hardy and another, copartners operating as Biltwell Builders, against J. Eddington Burroughs and others. From a decree refusing to dismiss the bill of complaint, defendants appeal.

Affirmed.

Argued before the Entire Bench.

Walter C. Jones, of Dowagiac, for appellants.

Carton, Gault & Parker, of Flint, for appellees.

CLARK, J.

The trial court on motion declined to dismiss the bill of complaint and defendants have appealed. The allegations of the bill, here taken as true, are that plaintiffs constructed on lot 234 of Carton Park in Flint a dwelling house, that the lot is owned by defendants Burroughs, subject to outstanding land contract in defendants Tanhersley, that plaintiffs so constructed by mistake, that defendants Tanhersley have taken possession of the house and occupy it, that defendants decline to make any adjustment with plaintiffs, and that the value of the house is $1,250.

No fraud is alleged, nor is there allegation of any conduct on the part of defendants to constitute estoppel, such as standing by and knowingly permitting plaintiffs to put up the house on the wrong lot.

It is not contended there can be recovery at law, Isle Royale Mining Co. v. Hertin, 37 Mich. 332, 26 Am. Rep. 520, and, this not being ejectment, the statute providing of compensation for improvements (section 13211, 3 Comp. Laws 1915) is not applicable. Lemerand v. Flint, etc., R. Co., 117 Mich. 309, 75 N. W. 763. If the owners had invoked the aid of the court of equity in the premises as against the builders as defendants, the court might require the owners to compensate the builders on the maxim ‘that he who seeks equity must do equity.’ Rzeppa v. Seymour, 230 Mich. 439, 203 N. W. 62. Abundant authority sanctions the exercise of the jurisdiction in such cases in favor of defendants or as auxiliary to some other relief properly cognizable in equity. Union Hall Association v. Morrison, 39 Md. 281. The question is, May the plaintiffs, the builders, sustain the bill as plaintiffs, except upon some ground of fraud or estoppel growing out of the conduct of the owners of the land, which, as has been said, is not in the case. On this question the authorities are divided. In 31 C. J. 315 it is said: ‘According to some authorities a bona fide occupant's right, in equity, to compensation for his improvements applies to him as defendant only, and does not give him the right to recover the value of his improvements after eviction by a direct affirmative suit against the owner of the property, although he made them innocently or through mistake, unless the owner of the land has been guilty of fraud, or of acquiescence after knowledge of his legal rights, or unless the parties have agreed upon compensation for the improvements. But according to other authorities, where an occupant in good faith has made improvements and has been evicted by the true owner, he may sue in equity for the value of his improvements without reference to any fraud or other misconduct on the part of the true owner. * * *’

In 14 R. C. L. 18, the weight of authority is recognized as in accord with the rule first stated in the above quotation. But the author of a note in 53 L. R. A. 339, after reviewing cases on both sides, aptly concludes: ‘And it would, indeed, seem strange that a state of facts which will furnish a perfect affirmative defense in an equity action should not constitute a cause of action, when necessary, in a suit in equity. In other words, that accident shall determine...