Hoffman v. Clark

• Citation: 29 N.W. 695,63 Mich. 175
• Court: Michigan Supreme Court
• Decision Date: 14 October 1886
• Parties: HOFFMAN v. CLARK.

29 N.W. 695

63 Mich. 175

HOFFMAN v. CLARK.

Supreme Court of Michigan

October 14, 1886

Error to St. Clair.

Harris & Vance, for plaintiff.

Frank Whipple and James L. Coe, for defendant and appellant.

CHAMPLIN J.

Plaintiff commenced proceedings before a circuit court commissioner, by a complaint made by John M. Hoffman in behalf of plaintiff, alleging that the defendant was then in the possession of lands and premises situated in the township of Fort Gratiot, in St. Clair county, described as follows "The south half of the south half of fishery No. 1, so called; said fishery No. 1 being more particularly described as commencing at the north line of the light-house reserve and extending 120 rods north of the McNeil tract, so called including the land lying between the lake road and the lake;" and further alleging that said Brittain Clark holds the said premises unlawfully, and against the rights of said Wesley F. Hoffman. The McNeil tract is located upon two private claims of Bonhomme and La Salle, and was divided into lots of various sizes, from 5 acres up to 30 and 40 acres each.

It appears from the testimony of Mr. Paldi, a surveyor, that the survey of the McNeil tract was made on the twenty-first day of December, and recorded the thirtieth day of December 1841. Previous to this time, and on the first day of February, 1841, the fishery in question had been conveyed by Charles Butler, trustee, to William Bond, Thomas Sufferran, and James McBride, in which deed it is described as "fishery No. 1, on the lake shore, beginning at the north line of the light-house reservation, on the lake, and extending northerly 120 rods north of the north line of the McNeil tract, so called, including the land lying between the lake road and the lake."

Plaintiff derives his title through mesne conveyance from the grantees in this deed. It appears that in 1878 or 1879 the defendant purchased from one Robert Holland a building used for a dwelling, for which he gave Holland $1,600. The land upon which the building stood appears to have been uninclosed and unimproved. Plaintiff claims to derive title to the land through Robert Holland and one Sufferran, as immediate grantors. It appears, also, that one Edison claims to own the land upon which the building occupied by Clark stands; and that, six or seven years before the trial in the court below, Clark obtained permission from Edison to occupy the land with his house, and has remained in possession under that permission ever since. It further appears that the premises where the house stands have been assessed to Edison, as the owner, by the supervisor. Plaintiff obtained his deed from Robert Holland and Sufferran in 1882. He afterwards, and on January 25, 1884, obtained a bill of sale from Clark of the house, for which he paid Clark $20. The bill of sale contained a clause that he might occupy the house until May 25, 1884, free of rent, as a further consideration for the bill of sale. At the expiration of this time Clark did not remove from the premises, and on June 14, 1884, plaintiff served written notice upon him to quit, and deliver up possession of the premises he then held of him, and describing the premises as follows: "The house and buildings now occupied by you, situate on the southwest corner of fishery number one, on the lake shore, above and adjoining the light-house reserve, in the town of Fort Gratiot, county of St. Clair, and state of Michigan."

July 5, 1884, plaintiff, by his agent, made complaint before Charles K. Dodge, circuit court commissioner, in which complaint he avers "that Brittain Clark is now in possession of the following described lands and premises, situated in the township of Fort Gratiot, in the said county, to-wit: The south half of the south half of fishery No. 1, so called; said fishery No. 1 being more particularly described as commencing at the north line of the lighthouse reserve, and extending 120 rods north of the north line of the McNeil tract, so called, including the land lying between the lake road and the lake; that said Brittain Clark holds the said premises unlawfully, and against the rights of said Wesley F. Hoffman."

There was nothing in the bill of sale which created the relation of landlord and tenant. There was no letting of the premises, and no rent reserved. Clark sold the house for $20, and reserved the possession and use thereof four months as part of the consideration of the sale. He continued to occupy it after the expiration of that time without any special arrangement with plaintiff, from the twenty-fifth of May to the fourteenth of June. From the length of time which elapsed after the twenty-fifth of May, the consent of plaintiff to such occupation may be implied, and Clark would thereupon become tenant at will of plaintiff, and such is plaintiff's claim. But this is fatal to his action, for a tenant at will is entitled to three months' notice to quit, in the absence of an agreement to pay rent at shorter intervals than three months, which was not the case here. There was testimony tending to show that the house in question was formerly owned by Robert Holland, and, on account of the shore of the lake washing away, had been moved back at least two different times, and upon the land claimed by Edison, but without his consent. Witness Edison testified that he had a talk with Holland...