Kelley v. Edwards

• Decision Date: 22 January 1878
• Citation: 38 Mich. 210
• Court: Michigan Supreme Court
• Parties: Chandler Kelley v. James B. Edwards

38 Mich. 210

Chandler Kelley v. James B. Edwards

Supreme Court of Michigan

January 22, 1878

Submitted January 10, 1878

Error to Allegan.

Ejectment. The facts are in the opinion.

Judgment affirmed with costs.

Jacob V. Rogers for plaintiff in error.

James B. Humphrey and W. B. Williams for defendant in error.

OPINION

Graves J.

The plaintiff brought ejectment and on trial of the case before the court without a jury, judgment was given for the defendant and the plaintiff brought error. Kelley claimed the land as original grantee and Edwards deduced title from a sale made during Kelley's minority by his father, who acted as his guardian.

The sale so made by the elder Kelley occurred on the 12th of February, 1855, and when the plaintiff was about ten years old, and this suit was commenced in August, 1875, at which time he was about thirty-one years old. The judge finds that some one holding under the title made by this sale has been in possession most of the time since 1856, and that from the spring of 1866 to the time of the trial a continuous occupation had been kept up by the defendant, the fore part of the period under the holders of that title, and the latter part of it as grantee of it.

The only question of any importance in the case relates to particular proceedings in the court of probate.

The title being in the plaintiff and he being a minor under fourteen, his father made application in the court of probate for Allegan county, that being the county in which the land was situated, to be appointed guardian. This was on October 18th, 1854. The judge of probate had recently died and no successor had been elected or appointed, and Henry C Stoughton, circuit court commissioner for the county, was performing the duties of judge of probate under § 16 of chapter 91 of the Revised Statutes of 1846, which was then in force. Mr. Stoughton entertained the application of the elder Kelley and ordered that a hearing should be had upon it on Saturday, November 26th, and directed publication of notice for three successive weeks previous to the day of hearing. The notice was published, but it happened that the 26th day of November was Sunday instead of Saturday, and in consequence of this mistake the matter was called up on Saturday, November 25th, and Mr. Stoughton still sitting in probate formally appointed and licensed the father of plaintiff as guardian and the latter entered immediately upon the trust. On the same day he applied for leave to sell the land in question and thereupon Mr. Stoughton, who was acting still, received the petition and ordered a hearing upon it on the 25th of the ensuing December. He also directed the giving of proper notice. But before the appointed time Mr. E. B Bassett was duly commissioned as successor of the deceased judge and he at once superseded Mr. Stoughton. The remainder of the proceedings were under his administration of the office. He recognized what had been done as valid and regular and took up the business where Mr. Stoughton left it, and there is no objection worthy of notice to such of the proceedings as occurred after his accession. The circumstance that the appointment of guardian was made on the 25th of November, when the order and...