Peck v. Houghtaling

• Decision Date: 24 October 1876
• Citation: Peck v. Houghtaling, 35 Mich. 127 (Mich. 1876)
• Court: Michigan Supreme Court
• Parties: Horatio N. Peck v. William O. Houghtaling

35 Mich. 127

Horatio N. Peck v. William O. Houghtaling

Supreme Court of Michigan

October 24, 1876

Heard October 13, 1876

Case made from Kent Circuit.

Judgment reversed, and judgment entered in this court for the defendant, with costs of both courts.

Godwin v. Reeves, for plaintiff, argued that the declaration, being as broad as the facts, was sufficient; that after plaintiff had proved the covenants, the burden of proof of the title was upon defendant, and he is bound in the first instance to maintain the affirmation of his covenant, the knowledge of the state of the title being supposed to rest with him; and that upon the trial, if neither party had offered any evidence, the plaintiff would be entitled to recover, and his measure of damages would be the purchase price and interest Rawle on Cov, 84, 56; Potter v. Kitchen, 5 Bosw 566; Marston v. Hobbs, 2 Mass. 437; that plaintiff made out a prima facie case at least, when he proved the giving of the deed bye defendant, and that plaintiff claiming title under it, paid the taxes until final decree in the Hewitt suit, and that while he was doing so, Hewitt went into possession and filed his bill, and Houghtaling, being notified, contributed to the defense, and that the suit was prosecuted to a final decree and Peck defeated and the land declared to be the property in fee of Hewitt: 14 Johns. 247; 16 Wis. 104; 40 Ill. 266; 3 Green (Ia.), 261.

Joslin & Kennedy, for defendant, argued that the declaration did not allege an eviction; that the covenants for quiet possession and of general warranty require the assignment of a breach by a specific ouster or eviction by paramount title: Rawle on Cov., 192; 2 Greenl. on Ev., § 243; Marston v. Hobbs, 2 Mass. 433; Rickert v. Snyder, 9 Wend. 416; Pollard v. Dwight, 4 Cranch 431; 7 Johns. 376; that the deed contained no covenant for quiet possession, the blank not being filled with the essential word "he" or "they," as in the other covenants, showing an intention not to be bound by that covenant: Buell v. Irwin, 24 Mich. 152; Bennett v. Robinson, 27 Mich. 26; that it was incumbent on plaintiff to show clearly that the title under which Hewitt took possession, and on which his decree was based, was prior and paramount to the title conveyed by Houghtaling: Rawle on Cov., 228, and cases cited; Kelley v. Dutch Church, 2 Hill 113; and that the Hewitt decree put in evidence does not show, even prima facie, that Houghtaling had not a good title at the date of his deed.

OPINION

Graves, J.

This is a case made after judgment.

On March 22, 1855, defendant gave a deed to plaintiff for the west half of the northwest quarter of section fifteen, township seven north, of range two east, in this state. It was upon the consideration of three hundred and twenty dollars, and contained the common covenants of seizin, for peaceable possession, or in other words, quiet enjoyment, and against incumbrances, and no others. The land was wild and vacant, and so continued until entry by one Lauren K. Hewitt. This occurred about the first of February, 1860, and Hewitt at once notified Peck of his assumption of possession, and that he claimed to have title, and desired Peck to relinquish to him. About the 24th of March following, Hewitt filed his bill against Peck alone, to quiet title. In this bill he alleged that he was at that time owner in fee simple, but gave no account of the origin, history or date of his title.

He averred that he was then in possession; that the land was worth eight hundred dollars, and that Peck claimed an interest or title under certain tax sales, which he alleged were invalid, but constituted a cloud on his title.

The tax sales were alleged to have been for delinquent taxes for the years 1843, 1844, 1845, 1846, 1847, 1851, 1852, 1853, 1855, 1856, 1857 and 1858. There was no allegation that any deed or patent had been given to any one on account of these sales, or that any of the tax proceedings referred to had proceeded further than sales. Soon after such bill was filed, Peck called on Houghtaling and informed him of the suit, and asked him to defend, and they then went together and talked the case over with counsel, and Houghtaling refused to make any defense. They agreed, however, that Mr. Bement, an attorney, should examine the records, and they respectively contributed to the expense, Mr. Houghtaling paying five dollars. At this time the gentleman employed thought there was good ground for defense. Subsequently he appeared for Peck and put in his answer, and therein claimed that Peck was owner in fee. A replication was filed and proofs taken, and on October 21, 1873, the cause was brought to hearing, and on the same day the following decree was entered:

"The circuit court for the county of Shiawassee, in chancery.

"Lauren K. Hewitt v. Horatio N. Peck.

"At a session of said court held at the court house in said county, on the 21st day of October, A. D. 1873.

"Present Hon. Josiah Turner, circuit judge.

"This cause having been brought on to be heard on pleadings, and proofs taken in open court, and the stipulations of the respective parties, and after hearing Mr. E. Gould, of counsel for said complainant, and Mr. L. Bement, of counsel for said defendant, it is ordered, adjudged and decreed, and this court doth, by virtue of the power and authority in it vested, order, adjudge and decree that the said defendant has no right, title or interest in the land described in the bill of complaint in this cause, and described as the west half of the northwest quarter of section fifteen, in township seven north, of range two east in the county of Shiawassee and state of Michigan.

"And it is further ordered, adjudged and decreed that the said complainant has a good, sure and perfect title in fee simple to said land.

"And it is ordered, adjudged and decreed that the defendant release and quit-claim to complainant all the rights and interests which he has or claims in and to said lands; and that until he shall so release and quit-claim, this decree, duly certified and recorded in the office of the register of deeds of the county of Shiawassee, do stand as such release and quit-claim; and it is further ordered, adjudged and decreed that said defendant pay to said complainant his costs in this suit to be taxed, and that said complainant have execution therefor.

"Josiah Turner, ...