Moody v. Seaman

• Decision Date: 27 April 1881
• Citation: 8 N.W. 711,46 Mich. 74
• Court: Michigan Supreme Court
• Parties: MOODY v. SEAMAN.

8 N.W. 711

46 Mich. 74

MOODY v. SEAMAN.

Supreme Court of Michigan

April 27, 1881

Summary proceedings for the possession of lands may be instituted by a widow for the recovery of her interest in the lands of her husband, although her dower has not been assigned; and where she also represents the interest of the heirs, he may recover the possession of the whole. Plaintiff held entitled to bring proceedings for recovery of certain lands. Section 21 Rev.St.1846, prohibiting proceedings in certain cases for the recovery of lands, is, since the Laws of 1869, no longer in force.

Error to Wayne.

J.L. Vanderwerker, for plaintiff in error.

C.I Walker, for defendant in error.

COOLEY J.

Mrs Seaman, the defendant in error, commenced summary proceedings to recover possession of land, claiming the right of possession as tenant in dower, and guardian of her infant children. She was at the time of her marriage to Mr. Seaman widow of John W. Pardee, who had owned the land during his life. The defendant below, claimed in his own testimony to have gone into possession under a verbal agreement of sale for a price of $600 which was to be paid by payments of $70 a year, but which as he showed had not been paid except by some early payments about 10 years ago. The testimony on the other side showed a mere tenancy at will, on rent which had become somewhat in arrears, and proof was made of a five or six months' notice to quit, a promise by Moody to give up possession on the first of April, 1880, and a second notice of 14 days before April 1st. Judgment was given on appeal for the demandant.

The questions raised are all within a narrow compass, and need not be discussed separately throughout. The form of the complaint is in compliance with the statute, and within the rule of Bryan v. Smith, 10 Mich. 229. It is objected that Mrs. Seaman could not bring this proceeding before her dower was assigned. This might be true if she had represented no other interest, because the statute does not contemplate proceedings unless the demandants represent the entire interest. But it has not been doubted that tenants in common of the whole estate could join in such action. Under our present statutes a widow may bring ejectment for her undivided interest at once and without assignment, and is recognized as having a present possessory claim capable of enforcement. Proctor v. Bigelow, 38 Mich. 282. In connection with the heirs at law there can be no doubt the whole possessory estate is represented. In this case it happens that she herself has the right of possession on behalf of the heirs, and there is no reason why, inasmuch as she thus represents for them and herself the whole title she should not be allowed to...