Pendill v. Marquette County Agricultural Soc.

• Decision Date: 31 May 1893
• Citation: 55 N.W. 384,95 Mich. 491
• Court: Michigan Supreme Court
• Parties: PENDILL et al. v. MARQUETTE COUNTY AGRICULTURAL SOC.

55 N.W. 384

95 Mich. 491

PENDILL et al. v. MARQUETTE COUNTY AGRICULTURAL SOC.

Supreme Court of Michigan

May 31, 1893

Error to circuit court, Marquette county; John W. Stone, Judge.

Ejectment by Frank P. Pendill, Joseph Neidhardt, and James E. Sherman against the Marquette County Agricultural Society. The court directed a verdict for defendant, and plaintiffs bring error. Reversed.

Hayden & Young, for appellants.

Ball &amp Hanscom, for appellee.

HOOKER C.J.

Plaintiffs brought ejectment, claiming title in fee to the premises described in their declaration, and proved a perfect title from the federal government. The defenses made are (1) that plaintiffs are estopped from asserting their title against defendant; (2) that defendant has acquired title by adverse possession. The ancestor of plaintiff Pendill, one John Pendill, was the owner of a tax title covering the land in controversy, upon which an auditor general's deed had issued to him. After his death, plaintiff Pendill, and the other heirs and widow of the decedent, joined in a partition deed reading as follows, viz.: "This indenture made," etc., "between Frank Pendill" (and the other heirs) "who are the sons and heirs at law of James Pendill, deceased, witnesseth, that the said parties, as such heirs at law and widow, have by amicable arrangement divided among themselves the property of said estate: Now, therefore, in order to carry into effect the said agreement and division, the said parties, in consideration of the sum of one dollar to each in hand paid the receipt whereof is hereby confessed and acknowledged have granted, sold, and conveyed all their right, title, and interest in and to the following described land," etc., (here follows description of land conveyed to the several parties,) "to have and to hold to each of said grantees the lands above described, as conveyed and set off to them in severalty, and to their heirs and assigns, forever." It is defendant's theory that under this partition deed, any title to the premises, subsequently acquired by Frank Pendill inured to the benefit of the grantee named in that deed, James Pendill, and through him to defendants. In the case of Jackson v. Waldron, 13 Wend. 178, it is said that "the principle of an estoppel, as applicable to deeds, is to 'prevent circuity of action, and to compel parties to perform their contracts.' Thus, a party asserting in a deed the existence of a particular fact, and thereby inducing another to contract with him, cannot by a denial of that fact compel the other party to seek redress against his bad faith by suit," etc.; and this doctrine is well supported. So, where the deed imports to convey a fee, though it lacks a covenant of warranty, the doctrine of estoppel permits the grantee to have the benefit of such titles as the grantor may subsequently acquire. In the case of Van Rensselaer v. Kearney, 11 How. 326, it is said by Mr. Justice Nelson that "the principle deducible from these authorities seems to be that, whatever may be the form or nature of the conveyance used to pass real property, if the grantor sets forth on the face of the instrument, by way of recital or averment, that he is seised or possessed of a particular estate in the premises, and which estate the deed purports to convey, or, what is the same thing, if the seisin or possession of a particular estate is affirmed in the deed, either in express terms or by necessary implication, the grantor, and all persons in privity with him, shall be estopped from ever afterwards denying that he was so seised and possessed at the time he made the conveyance." We may then inquire whether the partition deed relied on carries on its face, by way of recital or averment, the statement that the grantors or their ancestor were seised of a title in fee in the premises, either in express terms or by necessary implication. After naming the parties, the deed recites the fact that they "have by amicable arrangement divided among themselves the property of the estate." The consideration is "one dollar to each," for which they "have granted, sold, and conveyed all their right, title, and interest" in the land mentioned. If there is an assertion of any particular interest or title, either express or by necessary implication, it is limited to that belonging to the estate, of which it may be presumed that all were...