De Mill v. Moffat
| Decision Date | 04 October 1882 |
| Citation | 13 N.W. 387,49 Mich. 125 |
| Court | Michigan Supreme Court |
| Parties | DE MILL and another v. MOFFAT and another. |
Recovery in ejectment is limited to the interest claimed in the declaration, and cannot cover any interest acquired by plaintiff after the dates set forth therein as those on which he had possession and defendant entered.
Where several plaintiffs in ejectment aver a joint title, proof of title in a smaller number is inadmissible. And if one of the plaintiffs has died since beginning suit, and his successors in title or representatives have not been brought in, proof of the joint interest alleged is inadmissible, and there can be no recovery on it.
Where plaintiffs in ejectment claim as heirs, they must show that their ancestor died seized of the premises.
Where a case rests upon several grounds some of which are negatived by the charge or by waiver, and the party presenting them nevertheless recovers, it is unnecessary to consider them in reviewing the case at the instance of the other party.
Plaintiffs in ejectment, claiming as heirs, cannot defeat the plea of adverse possession for the period of the statute of limitations by relying upon a disability which arose before the transmission of the estate from their ancestor and after the statute of limitations began to run.
The statute of limitations in ejectment is not arrested by the devolution of the estate.
An equitable estoppel can only arise in support of right and justice; and it cannot be sustained if it does not appear that the adverse party was prejudiced by the course relied on to establish it.
An estoppel in pais resting upon verbal admissions cannot operate to transfer an interest in land.
The verdict of a jury cannot be revised in a higher court if there is evidence to sustain it.
Where ejectment is brought for several parcels of land an instruction to the jury that if they should find that plaintiff's ancestor had deeded to defendant's grantor, it would "end the case," is erroneous if they find for defendant upon evidence which does not tend to show that the deed covered all parcels.
Error to St Clair.
George S. Voorheis, for appellants.
O'Brien J. Atkinson, for appellees.
A tract of land now situated within the city of Port Huron has been for many years a subject of litigation, and some of the contentions have been brought to this court. See Hunt v Thorn, 2 Mich. 213; Hoffman v. Harrington, 28 Mich. 90; De Mill v. Port Huron Dry Dock Co. 30 Mich. 38; Walsh v. Varney, 38 Mich. 73; and other cases. The present controversy relates to a small portion of the same land and the cases referred to will furnish all necessary historical information. The action is ejectment. It was begun May 20, 1873, by Henrietta De Mill, Harriet J Comstock and Nancy Kimball sisters of each other and nieces of John Thorn and being three of his numerous heirs at law. The subject-matter of the action is a specific undivided interest in fee in lots 32 and 34 west of Huron street and in lot 30 east of Fort street according to Thorn's plat. The declaration contains three counts. Each alleges title May 1, 1873 and entry and ouster on the day following. The first count claims a joint undivided interest in all the plaintiffs of eight forty-ninths; the third a joint undivided interest in all the plaintiffs of one twenty-first; but the second claims an undivided one-sixth in Mrs. De Mill separately. Nancy Kimball died and the case went to trial without bringing in her heirs or representatives. The jury found in favor of defendant, and the surviving plaintiffs have brought the case here on writ of error and bill of exceptions.
The general question is whether on the whole record a new trial ought to be granted to these plaintiffs in error. The points agitated are numerous, and the record suggests others. But many require no consideration. Some few, though not material to the decision, may be noticed. The main questions may be chiefly considered without a detailed discussion.
On opening the case, the plaintiff's counsel observed to the jury that the whole land was claimed as against the defendant, but only one-half as against the Knapp heirs. The meaning of this statement is not apparent. The suit is brought to recover of the defendant and not to recover of third persons, and the claim made by the declaration in pursuance of the statute (Comp.Laws, � 6112) is confined to an undivided share or interest, and no recovery could be had of the defendant for more than the amount of interest claimed. Evidence was given to make out that the surviving plaintiffs had obtained interests beyond their own heirships, but it also appeared that such further interests were not received until May 19, 1873, the day before the commencement of the suit, and hence too late to support the averment of ownership in the declaration. The statute requires the plaintiff to aver possession on some specific day subsequent to that on which his right or title shall have accrued, and then next to aver that defendant afterwards, and on some specific day, entered, etc. Section 6210. Here, as we have seen, the land declared for was land possessed on May 1, 1873, and entered by defendant on the 2d, and no interest acquired on May 19th, or after May 1st, could be recovered under this declaration. Siglar v. Van Riper, 10 Wend. 414. The only interests disclosed which the plaintiffs could contend for under the pleadings were such as they inherited from their uncle, John Thorn. When a joint title is laid in several plaintiffs a title in a less number is not probable. Doe v. Butler, 3 Wend. 149; Gilbert v. Stanley, 1 Hill, 121. And as one of the plaintiffs had died, and neither her successors to the title nor any representative was brought in, it was not practicable to prove or recover the joint interest or title laid in the first and third counts. As these decisions in New York were made on laws we have copied, they are worthy of special consideration.
It would seem from what has been said that the case was reduced to the right laid in the second count, namely the right of Mrs. De Mill to recover a separate undivided interest and not exceeding the interest which came to her as heir of John Thorn. But the controversy was finally submitted on an assumption that there might be a recovery on the first and third counts or either of them by the surviving plaintiff, or on the second count by Mrs. De Mill separately, and the proceedings may be considered under that theory. That the plaintiffs were legal heirs of Thorn was not questioned, but it devolved upon them to show that he died seized of the premises; because if he did not no interest was transmitted and there could be no recovery whether the defendant was vested with title or not. But the defendant did not rest on a mere denial of title in the plaintiff. He claimed title in himself--First, through a lost conveyance from John Thorn to Samuel W. Hamilton; second, by adverse possession; third, through probate sales in the settlement of John Thorn's estate; fourth, through the decree in chancery in the case of Hunt v. Thorn, supra; fifth, through tax sales. The jury were instructed that the tax proceedings were void and the defendant expressly renounced all claim of title founded on the decree in chancery. These elements were therefore eliminated.
In the next place it appears superfluous to examine the probate proceedings on the question of title in the defendant. They were introduced by the plaintiffs to support a theory of estoppel, and it is very clear they exercised no influence on the result. Moreover the probability is exceedingly remote that they may play any material part hereafter in proving title in the defendant. There was substantial evidence for the jury of a regular adverse possession by defendant and his predecessors in interest from a long time anterior to John Thorn's death, which occurred in the summer of 1851, down to the commencement of the suit, a period of about 30 years. There was enough in the evidence on this subject to give the jury an opportunity to sustain the defense of adverse possession, unless some circumstances appeared to obviate the effect. And the plaintiffs say that this circumstance did appear, That it was shown that they were married women and therefore under a disability to sue or enter, and hence that the statute did not run against them. But this claim is futile, whether the state of marriage created a disability or not. The possession, such as it was began a long time before Thorn's death, and several years before the plaintiffs became his heirs. The right of entry originally accrued to Thorn, under whom they claim, and he was under no disability, and if at his death the estate fell to them as his heirs and they were then married women, the running of the statute was not interrupted by a disability, if any, resulting from the marriage. The limitation having lawfully commenced against their alleged predecessor in estate, its progress was not arrested by the devolution of ownership, in case any occurred. Smith v. Hill, 1 Wils. 134; Cotterell v. Dutton, 4 Taunt. 826; Rhodes v. Smithurst, 4 Mees. & W. 42; S.C. 6 Mees. & W. 351; Eages v. Com. 4 Mass. 182; Peck v. Randell, 1 Johns. 165; Demarest v. Wyncoop, 3 Johns, Ch. 129; Jackson v. Wheat, 18 Johns. 40; Dillard v. Philson, 5 Strobh. 213; Byrd v. Byrd, 28 Miss. 144; Seawell v. Bunch, 6 Jones, Law, 197; Tracy v. Atherton, 36 Vt. 503; Reimer v. Stuber, 20 Pa.St. 458; Stephens v. McCormick, 5 Bush, 181; Ruff v. Bull, 7 Harr. & J. 14; Pinckney v. Runage, 31 N.J.Law, 21; Lewis v. Barksdale, 2 Brock....
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