McCammon v. Detroit, L. & N.R. Co.
| Decision Date | 23 June 1887 |
| Citation | 66 Mich. 442,33 N.W. 728 |
| Parties | McCAMMON v. DETROIT, L. & N.R. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Ingham county.
Cahill & Ostrander, for plaintiffs.
Charles B. Lothrop, for defendant and appellant.
This is an action of ejectment brought by the plaintiff to recover of the defendant possession of about six acres of land in the city of Lansing. The defendant pleaded the general issue. The cause was tried in the Ingham circuit, before Hon. ANDREW J HOWELL, circuit judge of the First judicial circuit, by jury. The plaintiff recovered, and the defendant brings error. Four errors are assigned. The third, which we consider first relates to an amendment allowed to the declaration at the close of the trial. The declaration, as originally filed joined, with Malvina R. McCammon, Hannah Rice, and alleged that they were jointly entitled to the land in fee. On the trial it appeared from the testimony that the plaintiff owned the land in fee, and that Mrs. Rice was her mother, entitled only to a dower interest therein; and that, without any assignment of the dower, the mother and daughter had always occupied the land together. Counsel for defendant objected to any recovery being had by the plaintiffs, or either of them under the declaration, and thereupon the plaintiff was permitted to amend the declaration by adding a new count claiming title in fee in Mrs. McCammon alone. This was done against the objection of defendant's counsel that the new count introduced a new cause of action into the case, which was barred by the statute of limitations. If the grounds of the objection had been sustained, I have no doubt the ruling of the court would have been erroneous; but the claim in the new count was not barred, neither did it introduce into the plaintiff's claim a new cause of action. It was the possession of the property mentioned in the plaintiff's declaration that formed the issue in both cases. The amendment was of no consequence, except as perfecting the record. It would have been entirely competent for the jury to have found the verdict they did without the amendment under the statute. How.St. � 7815, par. 2. The dower interest of Mrs. Rice had not been assigned. It was but a right in action, and was no bar to Mrs. McCammon's right to recover the possession of the fee. Scrib. Dower; Rayner v. Lee, 20 Mich. 384; Stewart v. Chadwick, 8 Clarke, (Iowa,) 463; Cox v. Jagger, 2 Cow. 651; Shields v. Batts, 5 J.J. Marsh. 12.
The deed contains no latent ambiguity. Its terms are clear distinct, and certain. It does not convey to the defendant the land mentioned in the declaration. The amount claimed is larger than that contained in the deed. There is no pretense that the deed covers it, or any portion of it, by the description contained in it; and as to the defense that the defendant is entitled to an estoppel, as against the plaintiff, on equitable considerations, it cannot be sustained. This question, or rather the facts upon which the question is made, it appears, was submitted to the jury; and, whether right or wrong, the defendant is in no situation to complain of the result, as the court adopted the views of defendant's counsel in so doing. The verdict is against the defendant, and I do not think we should disturb it upon that point. In speaking upon this subject the learned circuit judge said to the jury: ...
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