Mason v. Kellogg

• Decision Date: 15 January 1878
• Citation: 38 Mich. 132
• Court: Michigan Supreme Court
• Parties: Calvin C. Mason v. Israel Kellogg

38 Mich. 132

Calvin C. Mason v. Israel Kellogg

Supreme Court of Michigan

January 15, 1878

Submitted October 30, 1877

Error to Kalamazoo.

Assumpsit on a covenant of warranty. The facts are in the opinion.

Judgment affirmed with costs.

Edwards & Sherwood for plaintiff in error.

Arthur Brown for defendant in error. Notice to a covenantor of warranty to appear and defend in an action involving the title must be accompanied by a surrender of the management of the case to him, Collingwood v. Irwin, 3 Watts 310; Paul v. Witman, 3 W. & S., 410, and must be given before appearance is entered, Middleton v Thompson, 1 Spears (S. C.), 69.

Graves J. Campbell, C. J., and Cooley, J., concurred. Marston, J. did not sit in this case.

OPINION

Graves, J.

Mason sued Kellogg on the covenant for quiet enjoyment contained in Kellogg's deed to Mason's predecessor in title, Mary Ann Phillips, for lot sixteen of Sill's addition to Kalamazoo. The circuit judge ordered a finding for the defendant and the jury so found. Mason then brought error.

In some of its aspects the case has an importance beyond its bearing upon the interests of the immediate litigants. Before proceeding to ascertain the state of the case in point of law, a reference is necessary to several of the main facts. March 17th, 1849, the property was owned by one Healey, and he then conveyed to John H. Campbell, and in the succeeding April Campbell died seized and intestate. He left a widow, Caroline Campbell, and two children, Franklin and Sabina Campbell, his only heirs at law. The widow subsequently married again, and has since died. Franklin, who is now thirty-seven, removed to California at nineteen, and Sabina intermarried with one Sterling. August 22d, 1853, the probate court of Kalamazoo county upon his petition appointed one William T. Campbell administrator on the estate of said John H. Campbell. September 22d, 1854, the administrator reported to the court that he had sold lot sixteen of Sill's addition on the 18th of the same month under a license of July 24th, 1854, therefor, to George Thomas Clark for $ 200. September 25th, 1854, the court entered an order confirming the sale and directed a conveyance to Clark, and on the 8th of the following December a deed was given by William T. Campbell as administrator to Clark, and apparently to complete the public sale. On the next day, namely, December 9th, 1854, Clark made a deed of the property, and purported to convey it to said William T. Campbell in his private character for $ 200. July 25th, 1855, William T. Campbell conveyed to Tobias Johnson for an expressed consideration of $ 3,050, and on March 19th, 1862, Johnson conveyed to the defendant Kellogg for $ 3,500 as stated in the deed.

May 7th, 1864, Kellogg conveyed to Mary Ann Phillips for the named consideration of $ 2,400. September 30th, 1865, Mary Ann Phillips conveyed to Calvin N. Mason for $ 3,000, and March 12th, 1866, Calvin N. Mason and his wife Henrietta Mason united in a deed to their son the plaintiff, who was then a minor, for a recited consideration of $ 3,000. The deed from Kellogg to Mrs. Phillips and from Mrs. Phillips to Calvin N. Mason contained the usual short covenants of seizin, against incumbrance and for quiet enjoyment, and that from Calvin N. Mason to his son the plaintiff contained the covenants of seizin and against incumbrance, but in place of the covenant for quiet enjoyment it contained a covenant of warranty. It contained also immediately after the words describing the lot, this specific provision: "provided the right of possession to the whole of said premises is hereby reserved for the use as a homestead for the said Henrietta Mason and her children, Calvin C. and Emily Mason, until said Calvin C. Mason shall arrive at the age of twenty-one years, or until the death of said Henrietta Mason, within that period. Mrs. Mason appears to be living, Emily was of age September 3d, 1872, and the plaintiff Calvin C. August 9th, 1876. This suit was commenced September 9th, 1875.

December 12, 1871, Franklin Campbell conveyed whatever interest he had in the lot in question to his sister Sabina Sterling.

February, 1872, Mrs. Sterling brought ejectment against Henrietta Mason, Calvin C. Mason and Emily Mason. The same counsel who appear for the plaintiff here then represented the defendants. September 27th, 1872, a plea of the statutory general issue was filed accompanied by a notice of special matter. This was in place and by way of amendment of previous pleadings. The notice set up that defendants would prove and insist that the lot claimed was formerly owned and possessed by John H. Campbell; that he died leaving it a portion of his estate; that William T. Campbell was appointed administrator of such estate; that in the course of administration said administrator was duly licensed to sell the lot, and pursuant thereto and in accordance with the statute did sell and convey it to George Thomas Clark; that defendants claim title through such sale; that more than five years had elapsed since said sale to Clark at the commencement of the ejectment; that the plaintiff claimed title under said John H. Campbell, and that her cause of action did not accrue within five years next before the commencement of suit. At the same time a claim for improvements was filed with a request for a finding of the addition to the value of the lot caused thereby. September 30th, 1872, the plaintiff in ejectment filed her request for a finding of value without improvements.

February, 1875, the cause was tried, and on the 24th "the jury found defendants guilty of unlawfully withholding possession from the plaintiff and that she was entitled to the property in fee." They also found that the lot was enhanced in value by improvements $ 1,650, and that it would have been thus worth $ 1,200 without the improvements, and in answer to a specific question they found in effect that the purchase apparently made by Clark at the administrator's sale was actually a purchase by the administrator himself in his individual behalf.

February 26, 1875, the court entered judgment on the verdict. It recited all the findings except the answer to the specific question, and adjudged that the plaintiff recover possession of the defendants on her paying into court $ 1,650, the amount of the improvements with interest thereon, at any time within a year from the date of the judgment and that she thereupon have a writ of possession according to the form and effect of the recovery. And further that if she should at the same or the next term elect on record to abandon the lot to the defendants at its value as found, that in that event she recover against the defendants $ 1,200 with her costs and charges to be taxed, and that the judgment be and continue a lien on the lot according to the statute. The costs were taxed at $ 131.57.

May 20th, 1875, the plaintiff filed her election to abandon the lot at the value found by the jury, $ 1,200. August 2d, 1875, execution was issued on the judgment and was levied on the lot August 24th, 1875. The record discloses that the lot was sold on the execution to Emily Mason for $ 1,425.50 October 16th, 1875, but this was more than a month after this suit was commenced.

In view of the peculiarities of the case it is deemed advisable to notice several questions brought under discussion although they are not material to the result reached.

A point is made by defendant that the plaintiff is not in a situation to complain of any rulings adverse to him, because, as is said, it appears affirmatively he had no right of action when the suit was commenced, and he grounds this claim on the force and effect which he ascribes to the particular provision in the plaintiff's deed concerning the temporary right of possession of the lot.

He contends that this provision created a distinct right of possession and enjoyment, which had not expired, and hence the plaintiff had not come into any right liable to disturbance within the protective scope of the covenant. The point is confined to the right of action and does not apply to the measure of recovery.

We shall not refine on the cause in question in the deed. We think the plaintiff immediately acquired an interest through the deed to which the old covenant applied.

The grantors do not appear to have retained any thing. The grant was to the plaintiff in fee with a qualified use to him and his mother and sister for a term limited to a few months, and which might be cut short by the occurrence of his mother's death sooner. Let it be admitted that plaintiff and his mother and sister were vested with a right to the land itself under this clause. Shep. Touch., 93; Co. Litt., 4 b.; Green v. Biddle, 21 U.S. 1, 8 Wheat. 1, 76. Let it be conceded that in virtue of being entitled to the described special kind of use and enjoyment for the time limited, they were by force of the deed and the statute (Comp. L., §§ 4116, 4118) vested for such time with a legal estate of the same quality and duration and subject to the same conditions as the beneficial interest as meant by the grantor; and still the plaintiff had all the estate and right not embraced by the clause in question and likewise the right under that clause to present possession and enjoyment in common with his mother and sister. His interest was severable from theirs. It was much more extensive. It covered every thing except the trifling matter of their right to use and enjoy with him in the special mode limited up to August 9th, 1876. That he had an interest and present right capable of being so disturbed and infringed as to give him an immediate right of action upon the covenant cannot be doubted. And the nature of his right and interest entitled him to...