King v. Merritt
| Decision Date | 13 October 1887 |
| Citation | 67 Mich. 194,34 N.W. 689 |
| Court | Michigan Supreme Court |
| Parties | KING v. MERRITT. |
J.L. Hawes, for appellant.
M.H Joy, (C.I. Walker, of counsel,) for appellee.
This action is ejectment, brought to recover possession of an undivided interest in blocks 55 and 58 in the village of Verona, in the county of Calhoun, which includes certain mill privileges. The cause was tried in the Calhoun circuit by jury in December, 1883, and verdict and judgment were rendered for the defendant.
The declaration contains five counts, each claiming a different interest. The claim in the first count is to an undivided half of said blocks, according to the recorded plat of said village, "located on the north half of section five, in town two south, of range seven west and the mills, mill privileges, and water-power appurtenant thereto." The second count claims an undivided three-quarters of the same property; the third, an undivided one-quarter; the fourth; an undivided three-eighths; and the fifth, an undivided one-eighth. In each count the fee of the parcel is claimed. The defendant's plea is the general issue.
From the record it appears that Ezra Convis became the owner of the N.W. 1/4 of said section 5 by entry, receiving his patent therefor, dated May 5, 1836. Convis died in February, 1837 leaving a widow and five minor children. The widow died in 1872. The children's names were Amanda, Albert, Ezra, Emily, and Wallace. Wallace died without issue, and unmarried, before this suit was commenced. Before Ezra Convis died he sold one-eighth of his interest in the property to Sylvester Mills, and gave him a bond for the conveyance thereof. Mills assigned this bond to John Stewart. Ezra Convis, shortly before his death, made and executed a will, which was subsequently duly probated. In his will he appointed Isaac E. Crary, John M. Barbour, and Epaphroditus Ransom his executors. A copy of this instrument will be found in the margin. [1] Ransom and Barbour did not qualify, and Isaac E. Crary became sole executor of the will. In 1839 the legislature passed an act authorizing Crary to sell or make partition of the land belonging to Ezra Convis. This act will also be found in the margin. [2] Session Laws 1839, p. 106. In 1842 Lydia Convis, the mother, was appointed by judge of probate guardian of the minor children. In the month of December, 1842, the probate court issued a warrant to commissioners to set off the dower of the widow in the real estate of Ezra Convis, deceased. The commissioners made their report in January, 1843, which was approved by the probate judge in April following. And among the lands set apart for her was an undivided one-third of blocks 55 and 58, "including the rents and profits of the mills, privileges," etc. Amanda Convis was the eldest of the minor children, and on the twenty-seventh day of April, 1841, she was married to John Van Arman, then being, according to her marriage certificate, but 18 years of age.
The claim of the plaintiff is based upon the following grounds: Her claim in fact being to three-fourths of so much of the property as belonged to the estate of Ezra Convis. To establish these, counsel for the plaintiff first introduced in evidence the patent issued to Ezra Convis, it being admitted that it covered the premises in question. Counsel for plaintiff next offered evidence of the marriage of Amanda, and the exclusive possession of the property in suit by the defendant at the time this action was brought. The plaintiff, after offering testimony tending to prove the signature of Albert Convis to a quitclaim deed dated September 19, 1881, conveying the said north-east quarter of said section 5 to Amanda Van Arman, offered the same in evidence. Plaintiff also offered a quitclaim deed of Amanda Van Arman to the plaintiff of all her interest in the estate of Ezra Convis, late of Calhoun county, deceased. The plaintiff here rested her case.
Defendant's counsel then offered in evidence the will, heretofore referred to, of Ezra Convis, deceased, from the records of the probate office, and an order of the probate court appointing Isaac E. Crary sole executor of said will. The defendant then offered the following testimony for the purpose of showing that Isaac E. Crary, as executor, under Act No. 88, Laws 1840, � 4, conveyed one-eighth of the property in question to John Stewart: Also another paper filed as a return. The defendant further offered the record of the deed from Crary to John Stewart, and the record of the certificate, being a deed of the undivided one-eighth of the premises in controversy, and other land included in the Convis bond to Mills. This deed was objected to by plaintiff's counsel on the grounds--First, that the same is unauthorized: second, there is no order by the probate court authorizing these proceedings or approving the same. The objection was overruled, and plaintiff's counsel excepted, and this exception constitutes the plaintiff's first assignment of error. This deed was dated on the fourth day of January, 1843, and acknowledged on the fourteenth of the same month, and was recorded on the twenty-eighth day of May, 1855. The consideration expressed is one dollar. The following is the description of the lands contained in this deed, with the release of other matters therein appearing, viz.:
"The north-west quarter of section five, township two south, of range seven west, the south-west quarter of section thirty-two, the south-west quarter of section twenty-nine, the north-east quarter of section thirty-one, the south-east quarter of section thirty-one, the west half of the north-east quarter of section twenty-eight, the south-west quarter of the south-east quarter of section twenty-one, and what is lying on the north side of Battle creek of the south-west quarter of the south-east quarter of said section twenty-one, all in township one south, of range seven west, containing about one thousand acres of land, including the village of Verona, except so much of the land included in the plat of said village of Verona as is hereinafter described as follows, to-wit: Lots one, two, three, four, five, and eight, of block sixty-eight, lots five, six, seven, eight, and the undivided half of lots one, two, three, and four, of block sixty-nine, the undivided half of lot two, of block seventy, also blocks fifty-five and fifty-eight, in said village, with all flowing rights arising from the erection of a mill-dam on said Battle creek by the said Ezra Convis in his life-time, and also all manner of action and actions, cause and causes of action, suits, debts, dues, covenants, contracts, promises, judgments, executions, claims, and demands whatsoever, in law or equity, or otherwise howsoever, as well against the said executor as the heirs of the said Ezra Convis, which I, the said John Stewart, ever had, now have, or which my heirs, executors, or administrators hereafter can, shall, or may have, for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world up to the date of these presents."
This deed was executed for the purpose of carrying out the contract made by Convis to Mills in fulfillment of the bond executed by the former to convey. This proceeding was authorized by the statute of 1840, heretofore referred to. Section 4 of this statute will be found in the margin. [1] This property was the same entered by Convis, and the proceedings recited in the record upon which the court made the order for sale were sufficient to give the probate court jurisdiction, and was made by Crary, and the recital in the deed says by him as executor. It will be noticed that the act requires no confirmation of the deed, and, if it did, such confirmation would be presumed after a lapse of 40 years; but the statute says when the conveyance is made, "acknowledged, and recorded in the registry of deeds for the county where such estate shall lie, shall be good and valid." The objection to this deed cannot be sustained.
The will created the trust, to be carried out by the executors, and it was the duty of the court to see that it was faithfully executed; and if the trustees appointed by the testator failed to accept or discharge the trust, it was the duty of the court to commit its execution to persons who would discharge the duties created by the trust. This may be done in the case of a will by appointing an administrator and issuing to him letters with the will annexed. Rev.St.1838, pp. 277, 278, �� 5, 9. The deed sufficiently shows that the executor in executing it did so in the discharge of his duties under the will.
After offering in evidence the act of 1839, found in the margin defendant's counsel next offered a deed from Isaac E. Crary,...
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