Smalley v. Mitchell

• Court: Michigan Supreme Court
• Writing for the Court: LONG, C.J.
• Citation: Smalley v. Mitchell, 110 Mich. 650, 68 N.W. 978 (Mich. 1896)
• Decision Date: 17 November 1896
• Parties: SMALLEY ET AL. v. MITCHELL ET AL.

68 N.W. 978

110 Mich. 650

SMALLEY ET AL. v. MITCHELL ET AL.

Supreme Court of Michigan

November 17, 1896

Error to circuit court, Wayne county; Joseph W. Donovan, Judge.

Action of ejectment by Edwin E. Smalley and another against Jacob Mitchell and others. From a judgment in favor of defendants plaintiffs bring error. Reversed.

James H. Pound, for appellants.

Hamilton Baluss, for appellee Phelinda Mitchell.

LONG C.J.

This is an action of ejectment. The lands in controversy were owned by Nancy Winfield, who, in March, 1871, by her last will and testament, conveyed them to Elizabeth Winfield and Sarah Tomlinson, the first named being the daughter of the husband of testator, and the other her own daughter. The lands were conveyed by the will to them jointly, and provided that, if either died without issue, the survivor was to take the whole. The parcel consisted of about 37 acres. The testator left, surviving her, several other children and her husband Selah Winfield, then advanced in years. Defendants claim that the will was made with the understanding that Sarah Tomlinson and Elizabeth Winfield should support and maintain the husband of testator during his life; that, in 1880, Sarah Tomlinson left their father with Phelinda Mitchell, who is also a daughter of Selah Winfield and testator, and requested her to take care of the father until the next spring; that Phelinda was put in possession of the lands in question for that purpose; and that in May, 1881, Elizabeth came, and found her in possession, and said to her, "You stay here on the place, and take care of pa, and you can have your pay and you can stay here until you get it," and that the property would have to be sold for their father; that Phelinda stayed on the premises from that time, taking care of Selah Winfield, until in 1895, when the old gentleman died; that during this time no one pretended to claim possession of the property, and she was left there for fourteen years and one month, in quiet and peaceable possession, though she had caused letters to be written to Elizabeth and Sarah, but heard nothing from them, as they had moved from there soon after the arrangement was made, in 1881, to different states, Sarah Tomlinson going to Colorado, and Elizabeth, who had married one Mr. White living in Massachusetts. The plaintiffs claim title through Sarah Tomlinson and Elizabeth Winfield, now Elizabeth White. The deeds of conveyance show a complete title of record in the plaintiffs, each owning an undivided one-half interest in the land. The defendants claim that, by virtue of this parol agreement, Phelinda Mitchell has the right of possession until she has received from the lands sufficient to meet the expenses of caring for the father, and that she has a...