Hogsett v. Ellis

• Decision Date: 14 October 1868
• Citation: 17 Mich. 351
• Court: Michigan Supreme Court
• Parties: James H. Hogsett v. Charles Ellis

17 Mich. 351

James H. Hogsett v. Charles Ellis

Supreme Court of Michigan

October 14, 1868

Heard July 9, 1868; July 10, 1868 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Kalamazoo circuit.

This was an action of assumpsit, brought to recover the value of the rent of certain property, and also the amount due upon several judgments.

The declaration contained the common counts and several special counts.

The facts are stated in the opinion.

Judgment was rendered for the defendant.

Judgment reversed, with costs, and a new trial awarded.

T. R. Sherwood, and Stuart, Edwards & May, for plaintiff in error:

1. There was no misjoinder of counts in the declaration.

The counts were all properly laid in assumpsit.

a. This form of action lies for use and occupation at common law: 3 Mich. 566; 4 Day 228; 4 Met. 227.

b. It lies upon judgment by our statute: 2 Comp. L., § 4552.

c. It was error for the court to compel the plaintiff to elect and abandon his other counts. And the error was not waived by his withdrawing the abandoned counts, after ruling of the court, exception taken and election made: 6 Ind. 487; 12 Id. 20; 15 Id. 23.

2. The statements of defendant to constable Fisher at the time he served the notice to quit, were not proper cross-examination, or relevant; no conversation with defendant having been alluded to in his direct examination. The constable was only the agent of the plaintiff to hand to defendant the notice: 6 Bosw. 229, 313; 32 N. H., 358; 4 Ia. 477; 5 Cal. 450; 25 Id. 212; 17 Wis. 477; 16 Ala. 526; 4 Harris 307; 3 Iredell 210; 4 Id. 282; 5 Miss. 480; 14 Me. 271; 2 Foster 450; 8 Allen 100; 24 Pick. 242.

3. The testimony of Ellis, as to how he claimed to occupy the property, was immaterial, and erroneously admitted. How he did occupy was one of the questions to be determined by the jury upon the law and facts in the case. This testimony could hardly fail to mislead the jury: 32 Me. 521.

4. The testimony of Bennett and Smith of the loss of files in the justice's court, in case of Allen v. Shaw, was insufficient to admit of parol evidence of their contents, the proper search not having been made: 1 Mich. 428; 6 Ind. 485; 33 Barb. 323; 16 Johns. 193.

a. The docket of the justice, and the files in the case, if produced and valid, were irrelevant and inadmissible: 6 Hill 292.

b. The pretented judgment in the case is a nullity. It does not show the names of the parties in the case; it does not appear that the justice acquired jurisdiction of the person of the defendant, or of the subject matter of the suit: 2 Comp. L., §§ 3679, 3680, 3890, 3711; 32 Conn. 103; 1 Doug. Mich., 502; 8 Mich. 493.

Arthur Brown, for defendant in error:

1. After defendant has entered under a contract of purchase he can not be liable to an action for use and occupation until evidence is produced of a new agreement between the parties: 3 Mich. 566; 11 Vt. 190; 30 Id. 759; 32 Id. 551; 6 Johns. 46; 7 Pick. 301; 11 Id. 1; 14 Id. 555.

Assumpsit for use and occupation can be brought only where the conventional relation of landlord and tenant exists between the parties, and not where it exists by operation of law: 31 Barb. 286.

The mortgage given by Shaw to plaintiff gave him no additional rights, as, under the statute in our state, the mortgagee is not entitled to possession, or to rents and profits, until foreclosure: Comp. L., § 4614; 12 Mich. 270; 13 Id. 23.

The mortgage is a real estate mortgage, although made by one holding a quasi chattel interest, and is therefore governed by the principles above laid down applicable to real estate mortgages: 7 Mich.; 9 Id. 246; 8 Met. 19.

The agreement sworn to by the witness, Myers, whereby Ellis agreed with Shaw to pay plaintiff the rent which should become due to Shaw, was not an agreement upon which Hogsett could sue, as he was a third party to the contract, and could not sue upon it, although for his benefit, unless the consideration moved from him: 1 Gray 321; 3 Id. 486; 6 Id. 66; 7 Id. 201; 13 Id. 66; 10 Mich. 426, 431; 14 Id. 496.

Nor is there any novation in this case; novation exists only where there is an entire change of the original rights and liabilities of the parties to it.

There must be a complete discharge of the principal debtor and an acceptance of defendant as debtor, and an agreement on the part of defendant to pay a particular debt: 1 Pars. on Cont., 189, notes and cases; 7 N. H., 345.

Therefore, resting the case solely on the evidence on the part of plaintiff, together with some facts introduced on the part of defendant not in dispute, the plaintiff had no right to recover, and can claim nothing from any errors in the introduction of evidence on the part of defendants, if there were any.

2. The plaintiff having withdrawn his counts on the judgments, the suit is discontinued, as to them, and he can not now ask this court to review the decision of the circuit court in ruling on the misjoinder of the counts for use and occupation, with those on the judgments: Hilliard on New Trials, 581; 7 Har. & J., 251; 2 Wend. 137; 9 Id. 548; 1 Comst. 125; 1 Cow. 709; 42 N. H., 114.

Having accepted the benefits of the ruling, by asking and obtaining leave to make the amendment, and by acting under it, he can not now be permitted to question its legality: 7 Paige Ch., 165.

There is nothing in the record of the present case to prevent another action being at once brought on the judgments. This action could not be pleaded in bar to such suit, as the suit on judgment is discontinued.

By striking out the counts on judgment, the declaration stands as if it had never contained those counts: 4 Mass. 146; 9 Cush. 266.

An action for use and occupation, is one for unliquidated damages, and can not be joined with an action on judgment, the proper action on judgment being debt.

A statutory can not be joined with a common law action: 1 Doug. 434, (447)--and such misjoinder may be taken advantage of on trial or writ of error, as well as on demurrer: 16 Johns. 147; 1 Chitty 205-6; 9 Blackf. 158.

3. The court permitted to be given in evidence the declarations of defendant made at the time of service on him, by Fisher, the constable, acting as agent of plaintiff, of an ordinary notice to quit, in which plaintiff assumed to be landlord, and that defendant was his tenant.

Defendant claims that the testimony was admissible on two grounds.

a. The declaration was part of the res gestoe of the circumstances of receiving the note from Fisher, disclaiming the implication conveyed by the notice that he was the tenant of plaintiff, otherwise a silent acquiescence in receiving such a notice might raise a presumption that defendant conceded himself to be the tenant of plaintiff: 3 Lead. Cas. in Eq., 62 (447).

To make a declaration evidence, it is not necessary that the person making it should himself be doing some positive act; if he is acted upon, it is a sufficient circumstance: 8 Mich.; 1 Greenlf. on Ev., § 108, a; 11 Pick. 362; 6 Wis. 232.

b. This declaration is also admissible, as explaining the act of possession: 8 Allen 24; 1 Greenlf. on Ev., § 109.

4. Exception is made to the question propounded to defendant, "How did you claim to occupy the property?" referring to the time at which plaintiff settled all claims with defendant and deeded the property to him. To which the witness replied, "I considered it mine." This was proper evidence.

The question is proper, as it illustrates the position of the parties at the time of settlement. If he barely asserted a claim of ownership, it is sufficient to become the basis of a settlement, and parol testimony, showing such claim, may be introduced for that purpose.

It is also admissible, on grounds above considered, for the purpose of rebutting any implication that the relation of landlord and tenant existed by agreement between the parties, and to show that defendant considered the contract of purchase still in force.

5. Other exceptions of counsel for plaintiff relate to the admission of the judgment and execution on the docket of Bildad Bennett, whereby defendant claims he acquired a title to the house and lot upon this land as chattel property, distinct from the freehold, by virtue of an execution against John H. Shaw.

Could the defendant thus acquire the interest of John H. Shaw in the house?

There is testimony showing that the house was erected on blocks and loosely secured to the ground; that the building was erected by Ellis, and by him sold to Shaw. It was not the building erected on the lot in pursuance of the agreement to purchase. And being the property of Shaw, it was a fixture, and liable to levy and sale as a chattel: 20 Johns. 29; 20 N. Y., 344; 33 Barb. 410; 13 Mich. 23.

The intent of the party erecting and owning, in the absence of any agreement will always determine the nature of the building, whether chattel or real: 18 N. Y., 28.

The nature of the building was properly left to the jury by the charge of the court.

The tenant may always acquire the title of the landlord subsequent to the demise: 5 Denio 430; 6 Wend. 666; 22 Id. 121.

It is only adverse titles that he is estopped from setting up: 1 Washb. on Real Property, 358, 360.

6. There was sufficient evidence of the loss of the files in the case of Allen v. Shaw.

The justice who issued, and first had control of them, testifies that he had searched his office for them, and they are not there. His successor is very certain that he never received the files from his predecessor, and is certain there are no such files in his office.

The evidence was a question of fact for the court upon which to determine the loss of the papers, and was amply...