Richards v. Richards

• Decision Date: 21 June 1889
• Citation: 42 N.W. 954,75 Mich. 408
• Court: Michigan Supreme Court
• Parties: RICHARDS v. RICHARDS ET UX.

42 N.W. 954

75 Mich. 408

RICHARDS v. RICHARDS ET UX.

Supreme Court of Michigan

June 21, 1889

Error to circuit court, Kent county; MONTGOMERY, Judge.

J C. Fitz Gerald, (F. A. Stace of counsel) for appellant.

MORSE J.

This is an action to recover the equal undivided one-sixth of 40 acres of land in the township of Paris, Kent county. The case was tried before Hon. R. M. MONTGOMERY judge of the Kent circuit court, without a jury. Judgment was rendered in favor of the defendants. The finding of facts is substantially as follows: October 16, 1875, one Erastus U Knapp conveyed the 40 acres in question by warranty deed containing full covenants of warranty, to Myron Richards, the father of plaintiff, and defendant Simeon Richards. The defendant Loretta Richards is the wife of Simeon Richards. Myron Richards at once entered into possession of the land, and occupied the same as his homestead until his death, January 1, 1877. He died intestate. He left surviving him his widow, Eliza Richards, and six children, to-wit, Erbin Richards, Truman Richards, Gilbert Richards, Simeon Richards, Martha McCormick, and Ann J. Forbes. On the 1st day of March, 1877, all of the children except the plaintiff, Erbin Richards, conveyed all their right, title, and interest, as heirs at law of their father, to their mother, Eliza Richards. In 1873 the land was sold for the unpaid taxes of 1872, and bid in by the state. This fact was unknown to both Knapp and Myron Richards when Knapp conveyed to Myron. Shortly before his death, Myron was informed of this outstanding tax-title, and made application to Knapp to have the title perfected under the latter's warranty. Knapp directed him to procure the tax-title to be conveyed to Myron, and he (Knapp) would bear the expense, but Myron died without having obtained it. After Myron's death, Simeon Richards, who was living on the farm with his mother, and before the fires of March, 1877, again applied to Knapp to secure this tax-title. Thereupon Knapp made an arrangement with Simeon by which it was agreed that said title, then appearing in the state of Michigan, should be acquired, and Knapp would pay the expense. Under this arrangement a deed of the land was procured from the auditor general to Eliza Richards, and after it was obtained Knapp paid to Simeon or his mother the money expended to acquire such title. This deed was dated March 1, 1877, and recorded on the 19th day of the same month. This tax-deed was shown to be void on the trial by reason of a defect in the supervisor's certificate attached to the assessment roll for the year 1872. On the 17th of March, 1877, Eliza Richards conveyed the land to Simeon by a deed, which, after reciting that she was the widow of Myron Richards, deceased, granted to the defendant Simeon Richards "all of her right, title, interest, and claim as widow of said deceased, and as purchaser and owner, in and to all that certain piece of land," etc., describing the 40 acres in question in this suit. After the death of his father, and until March 1, 1877, Simeon Richards and his mother continued to reside on said land, and Simeon managed the farm as he did before his father's death; the other children, including the plaintiff, residing elsewhere, and not interfering in any manner with the occupation of the land. No administration was ever had upon the father's estate. Before his father's death Simeon was working the farm on shares, and as tenant on shares was in actual occupation of the same with his father. After the conveyance of the mother to Simeon, she resided on the land in the family of Simeon until her death, which occurred in 1886. This was in pursuance of the terms of a mortgage bearing even date with her deed to Simeon, conditioned, among other things, for the support of the said Eliza Richards during her life by Simeon. On the 17th of March, 1877, the date of Eliza's deed to Simeon, he was actually in occupation of the land, and residing on the same with his mother. The plaintiff was living elsewhere. On that date the circuit judge finds that Simeon assumed possession and control of the premises as owner, claiming the title to the whole by virtue of said deed from Eliza Richards to him. "Said Simeon thereby ousted the plaintiff from the possession of said lands, and since that time he has been in the actual, continued, visible, notorious, and hostile possession of the same. The defendant Loretta Richards is the wife of the defendant Simeon Richards, and has lived with him on the lands during the period above named as his wife." This action was commenced August 3, 1887. "I find as a conclusion of law that the plaintiff was not, at the time of the commencement of this suit, entitled to the possession of the premises described in the declaration in this case."

We cannot agree with the conclusion of the circuit judge in the premises upon the facts as found by him. It is asserted by the counsel for defendants in their brief that the court below found that...