Osborn v. Potter

• Decision Date: 26 June 1894
• Citation: 101 Mich. 300,59 N.W. 606
• Court: Michigan Supreme Court
• Parties: OSBORN v. POTTER ET AL.

59 N.W. 606

101 Mich. 300

OSBORN v. POTTER ET AL.

Supreme Court of Michigan

June 26, 1894

Error to circuit court, Bay county; George P. Cobb, Judge.

Trover by John Osborn against Robert Potter and Clara Clarke. From a judgment for plaintiff, defendants bring error. Affirmed.

J. W. Clarke (Frank L. Fales, of counsel), for appellants.

Pratt Van Kleeck & Gilbert, for appellee.

MONTGOMERY J.

This is an action of trover for the conversion of a frame building erected by one Dorr F. Kinney, in 1878, upon land owned by Antoinette Beckwith. On the 14th of October, 1878, Mrs Beckwith executed a lease to Kinney for the term of five years. The lease provided that if the second party should pay said first party, in addition to the rents and taxes, $500 within five years, then "said first party will deed said land to him." Kinney occupied the premises until June 6 1881, when he sold the building to the plaintiff. Plaintiff went into possession at once, with the knowledge and consent of Mrs. Beckwith, the lessor, and paid rent to her. Mrs Beckwith agreed to give the plaintiff a five-years lease. It passed on from day to day, and ran four years without any written lease. On March 5, 1885, Mrs. Beckwith executed a lease of the land to the plaintiff for five years from that day. This lease contained a provision permitting the plaintiff to remove any and all buildings from the land at the time of the expiration of the lease. Plaintiff sublet the land and buildings to Potter and Banker for two years from March 7, 1885, with the privilege of five years from that date. Potter is the defendant in the present case. Potter testified that he paid rent to Osborn until March 7 1892; that he did not pay him rent any longer because he came to the conclusion that the property belonged to another party. About the time of the expiration of the lease from Beckwith to Osborn, while he was in negotiation with Beckwith for a purchase of the land, the defendant Clarke made the purchase, and obtained a deed. Plaintiff paid the land rent to defendant Clarke up to March 7, 1892. After Potter refused to pay rent to plaintiff, plaintiff demanded the buildings from defendants, and requested to be allowed to remove the buildings from the land, and, upon defendants' refusing to allow him to do so, brought this suit for the conversion of the property. Upon this state of facts the case would appear to be very simple. We think the buildings became no part of the realty, and that the lessee had the right to remove them at any time before the lease expired. Kerr v. Kingsbury, 39 Mich. 150. It is urged that because Kinney had the privilege of buying the property within five...