Loomis v. Roberts

• Decision Date: 10 June 1885
• Citation: 23 N.W. 816,57 Mich. 284
• Court: Michigan Supreme Court
• Parties: LOOMIS v. ROBERTS.

23 N.W. 816

57 Mich. 284

LOOMIS v. ROBERTS.

Supreme Court of Michigan

June 10, 1885

Appeal from Tuscola.

F.W Atwood, for complainant.

H.H Hoyt, for defendant and appellant.

CHAMPLIN J.

The bill alleges that complainant is the owner in fee and in the actual possession of the N.E. 1/4 of the S.E. 1/4 of section 24, township 13 N., range 7 E., and that it is worth $1,500 or upwards. This land he states was purchased from the state of Michigan on the seventeenth day of April 1851, by Ephraim Beebe, and by him sold and conveyed by warranty deed about January 1, 1853, to J.L. Watkins; that Beebe paid the state the full purchase price and took the usual certificate of purchase, and never surrendered the same or received a patent of the land from the state. Watkins never recorded his deed. The land was returned to the auditor general for delinquent taxes assessed for the years 1852 1853, and 1854, and was purchased at the tax sales by one Darwin A. Pettibone, who received the auditor general's deeds therefor, which were duly recorded. He further claims by his bill that one John S. Moore purchased the land from Pettibone in 1859, who promised to convey by warranty deed, but did not do so; that Moore went into actual possession in 1860, built a house thereon, and remained and continued in open and peaceable possession of the same, claiming title thereto by virtue of such purchase, until about the thirteenth day of August, 1873, when he sold and conveyed the same by warranty deed to one Joshua Parks, who went immediately into actual possession of the land, and remained in possession until about September 15, 1873, when he sold and conveyed the premises to Abraham Carter, and that he went into immediate possession and so remained until November 3, 1873, when he sold and conveyed the same by warranty deed to complainant, who has since the date thereof been in the actual, open, and peaceable possession of said land, claiming title thereto; that when Moore went into possession the land was wild and uncultivated, but that he, and those claiming through and under him, have improved, cultivated, and cleared up all but about five acres of the land; that on the tenth of November, 1880, Pettibone conveyed said land to complainant by a quitclaim deed, in pursuance of his agreement with Moore.

The bill further charges that one H.H. Hoyt, as the agent and attorney of Nelson L. Roberts, on or about the tenth day of March, A.D.1879, applied to said Beebe to purchase said land; that at the time said Beebe informed said Hoyt he did not own said land, nor did he have any interest therein, as he had before that time--in the year 1853--sold and conveyed the same by warranty deed to said J.L. Watkins. Thereupon said Hoyt inquired of said Beebe if he had in his possession the certificate of purchase issued to him by the commissioner of the land-office, and Beebe replied that he had. Thereupon said Hoyt proposed that if Beebe would assign said certificate to said Roberts he would give him five dollars for so doing, and said Beebe consented so to do, at the time expressly stating to said Hoyt that he had no interest in the land. Further, that on that day said Beebe, for the consideration of five dollars, did execute and deliver an assignment in writing of said certificate to said Nelson L. Roberts. That afterwards, on or about the twenty-fourth day of March, 1879, said Nelson L. Roberts surrendered said certificate, together with the assignment thereof, to the secretary of state of Michigan, and received from the state a patent of said lands in his own name, which patent he has procured to be recorded in the office of the register of deeds for Tuscola county, and now fraudulently claims to own said land in fee by virtue of said patent. Your orator further shows that on or about the sixteenth day of May, 1879, said Roberts commenced a suit in ejectment in the circuit court for Tuscola county against your orator, for the purpose of obtaining possession of said land by virtue of said patent, in which your orator has appeared and pleaded, and the cause has been regularly noticed for trial at the present term of this court. Your orator further shows that said Roberts has not any other or further claim of title to said land than by virtue of said patent, and that said patent, and record thereof, and claim of title made by said Roberts, constitute a cloud upon your orator's title, and ought to be removed by a decree of this court.

The answer admits the purchase by Beebe as alleged; that defendant procured a patent in his name, and claims...