Lamberton v. Pawloski

• Decision Date: 03 December 1929
• Docket Number: No. 141.,141.
• Citation: 227 N.W. 801,248 Mich. 330
• Parties: LAMBERTON et al. v. PAWLOSKI et al.
• Court: Michigan Supreme Court

248 Mich. 330

227 N.W. 801

LAMBERTON et al.

v.PAWLOSKI et al.

No. 141.

Supreme Court of Michigan.

Dec. 3, 1929.

Appeal from Circuit Court, Berrien County, in Chancery; Chas. E. White, Judge.

Suit by Ambrose Lamberton and another against Arnold T. Pawloski and another. Decree for plaintiffs, and defendants appeal. Affirmed by divided court.

Argued before the Entire Bench.

Gore & Harvey, of Benton Harbor, for appellants.

Burns & Hadsell, of Niles, for appellees.

POTTER, J. (for reversal).

Plaintiffs filed a bill of complaint in the circuit court for Berrien county to restrain prosecution by defendants of an action of ejectment, establish a boundary line, and remove a cloud from the title of land included within their alleged boundaries. Plaintiffs are owners of lots 25 and 26 in Jacob Beeson's addition to the city of Niles. Defendants are owners of lot 24 in the same addition. Defendants, claiming plaintiffs were in possession of a part of their land, to wit, a strip 16 1/2 feet wide, instituted ejectment to recover the same August 25, 1927, whereupon September 2, 1927, plaintiffs filed the bill of complaint herein. Defendants answered, claiming there was no equity in the bill and the same should be dismissed.

September 26, 1927, a motion was filed by defendants to dismiss the bill of complaint. This motion was argued November 30, 1927. In an opinion filed April 2, 1928, it is said: ‘Prior to the commencement of this suit the defendants herein had commenced a suit in ejectment in this court to recover from the plaintiffs the possession of the disputed strip of land. The plaintiffs herein thereupon filed this suit to quiet the title, and to restrain the further prosecution of the ejectment suit. Upon the trial of this cause it was agreed by counsel in open court that the matter in dispute might be fully determined in this action.’

August 28, 1928, a final decree was entered herein, and defendants appealed. The case was here submitted in the January, 1929, term. Subsequently this court, on its own motion, ordered additional briefs on the question of jurisdiction, and as bearing upon that question portions of the record below not settled by the court as part of the record on appeal have been certified here showing the basis of the motion to dismiss, the argument thereon, and the reasons for the court dismissing the ejectment suit after its prosecution was perpetually enjoined. No motion was made to remand the record for amendment. It was not remanded. I am satisfied the additional matter certified here after the case was heard, not settled by the court below as a part of the record on appeal, cannot be considered by this court. 4 C. J. 493, 494.

A similar question was before this court in Ballance v. Dunnington, 241 Mich. 383, 217 N. W. 329, 57 A. L. R. 262. We think the reasoning of that case decisive.

Plaintiffs' right to maintain this suit is governed by the conditions existing at the time the suit was commenced. If plaintiffs had no right of action when they brought suit, they may not sustain their cause by something done afterwards. Blackwood v. Brown, 29 Mich. 483. A right of action, not existing when suit is commenced, cannot be created ex post facto so as to justify the suit. Moyer v. Scott, 30 Mich. 345.

‘The rule is well settled, at least with regard to actions at law, and where no supplemental pleadings are filed, that the rights of the parties to an action must be determined according to the facts existing at the time the action was commenced. Plaintiff must therefore recover, if at all, according to the status of his rights at the time of the commencement of the action, and ordinarily the same rule applies to the rights and defenses of defendant.’ 1 C. J. 1149.

A suit in ejectment between the same parties, involving the same subject-matter, was pending in the circuit court of the same county, at the time this suit was commenced. Plaintiffs assert their right to elect the forum for trial of the controversy between themselves and defendants, attempt to deprive defendants of their right of trial by jury, establish a new field of equitable jurisdiction, and overturn the long line of precedents established by this court for the trial of disputed boundary cases. I disagree with the contention that we must determine the question of jurisdiction as though ejectment had not been commenced, because the only grounds of equitable jurisdiction asserted by the bill are to remove cloud from plaintiffs' title, restrain the action of ejectment, and incidentally determine the only controversy between the parties-the location of the true boundary line between their respective premises.

Equity has no jurisdiction to quiet title against mere repeated, though unfounded, verbal assertions of adverse claims.

‘The general rule is that equity will not entertain jurisdiction in actions to quiet title where there is a complete and adequate remedy at law; and where there is no danger from delay, and no other ingredient that requires the effective powers of equity to prevent fraud or injustice. In a case, therefore, where the remedy at law is adequate and complete, the complainant is remitted to such remedy; whether it be ejectment, trespass, writ of entry or other appropriate proceeding at law.’ 5 R. C. L. 637.

‘A cloud upon the title of the true owner of land, such as may be removed in equitable proceedings, is some deed or other writing which by itself, or in connection with proof of possession by a former occupant, or other extrinsic facts, gives the claimant thereunder an apparent right in or to the property. Civil Code, §§ 4892, 4893; Thompson v. Etowah Iron Co., 91 Ga. 538 ; 2 Am. & Eng. Enc. L. 298; 3 Pom. Eq. Jur. § 1398. A mere verbal claim to or oral assertion of ownership in property is not such a cloud upon the title of the owner. Parker v. Shannon, 121 Ill. 452 .’ Waters v. Lewis, 106 Ga. 758, 32 S. E. 854.

‘A bill will not lie to remove a mere verbal claim or oral assertion of ownership in property as a cloud upon the title. Such clouds upon title as may be removed by courts of equity are instruments or other proceedings in writing which appear upon the records, and thereby cast doubt upon the validity of the record title.’ Parker v. Shannon, 121 Ill. 452, 13 N. E. 155, 156.

‘That which is alleged to constitute the cloud is the wife's verbal assertion that she owns the two tracts in her separate right. Where the bill discloses no more than an unquiet and unfounded apprehension as to the validity of his title, and a false, clamorous assertion of a hostile title in defendant, a court of equity will not interfere to quiet the one or silence the other. 6 Ency. of Law, p. 153.’ Newman v. Newman (Tex. Civ. App.) 86 S. W. 635, 638.

‘We do not understand, however, that a bill will lie to dispel mere verbal assertions of ownership as clouds on title, or, invoking equity interposition on the ground of the removal of clouds, that decrees may be sought adjudging statutes unconstitutional and void. * * * The test as to when a cloud is or is not cast, as stated by Mr. Justice Field, then chief justice of California, in Pixley v. Huggins, 15 Cal. 127, and reasserted in Hannewinkle v. Georgetown, 15 Wall. 547, 21 L. Ed. 231, is undoubtedly applicable.’ Devine v. Los Angeles, 202 U. S. 313, 26 S. Ct. 652, 658, 50 L. Ed. 1046.

‘Unless otherwise provided by statute * * * a mere verbal claim to or assertion of ownership in realty does not constitute a cloud on title.’ 32 C. J. 1314 (note).

If defendants were verbally making false and malicious claims of title against the lands and premises of plaintiffs, plaintiffs had a complete and adequate remedy at law by the institution of suit for slander of title (Walkley v. Bostwick, 49 Mich. 374, 13 N. W. 780;Harrison v. Howe, 109 Mich. 476, 67 N. W. 527;Haney Mfg. Co. v. Perkins, 78 Mich. 1, 43 N. W. 1073), and, having a complete and adequate remedy at law, plaintiffs cannot maintain a suit in equity.

Mr. Justice SHARPE relies herein upon Stockton v. Williams, Walk. Ch. 120; Moran v. Palmer, 13 Mich. 367;King v. Carpenter, 37 Mich. 363;Methodist Episcopal Church of Newark v. Clark, 41 Mich. 730, 3 N. W. 207;F. H. Wolf Brick Co. v. Lonyo, 132 Mich. 162, 93 N. W. 251;Carpenter v. Dennison, 208 Mich. 442, 175 N. W. 419;Sterling Bank of Sleeper & Chamberlain v. Scott, 231 Mich. 362, 204 N. W. 135;Cummings v. Schreur, 236 Mich. 628, 211 N. W. 25; and Maes v. Olmsted, 247 Mich. 180, 225 N. W. 583.

Stockton v. Williams, Walk, Ch. 120, did not involve a disputed boundary. It points out that the statute giving equity jurisdiction to quiet title to real estate was passed to enable persons in possession of real estate, having title thereto, to remove all doubt in regard to their title arising from the claims of persons who are taking no steps to test the validity of their claims, and who, by their inaction, keep the party in possession in suspense. In this case the question of title is the only thing in dispute; defendants had begun an action in ejectment prior to the filing of the bill; such ejectment suit was pending when the bill was filed; the suit was commenced, not because defendants were inactive, but to restrain their activity; and plaintiffs here, as defendants in the ejectment suit, were not being kept in suspense, but placed on defense. The language of the court demonstrates its inapplicability to this case.

Moran v. Palmer, 13 Mich. 367, was not a boundary case, but one where defendants claimed to be part owners of the premises, by an unrecorded deed to their ancestors and by prior legal proceedings between them and parties other than complainant, through or under whom he derived title. The court said: ‘We have thus presented to us the anomaly of a party who asserts that he is possessed of a complete legal title to lands which are occupied by him, and who points out no difficulty in the way of his exhibiting and establishing such title, appealing to a Court of equity...