Smith v. Detroit Loan & Bldg. Ass'n
| Decision Date | 21 December 1897 |
| Citation | 73 N.W. 395,115 Mich. 340 |
| Parties | SMITH v. DETROIT LOAN & BUILDING ASS'N. |
| Court | Michigan Supreme Court |
Error to circuit court, Wayne county; William L. Carpenter, Judge.
Action by Minnie Smith against the Detroit Loan & Building Association. There was a judgment in favor of plaintiff, and defendant brings error. Reversed.
Levi J. Fick and Robert Young, for appellant.
Jay Fuller, for appellee.
Plaintiff recovered a judgment against the defendant for a trespass committed upon her person and to her personal property, from which judgment defendant appeals.
Plaintiff's declaration alleged, in substance, that she purchased upon land contract from defendant, on the 20th day of March, 1890 the west half of lot 29, of Hunt & Leggett's subdivision. The declaration then stated the terms of the contract as originally made; "that plaintiff went into possession of the premises by virtue of it, and that November 1, 1895, the contract was modified, stating the terms of the modification and that on March 30, 1896, while she was in the possession of the premises by virtue of the contract, the defendant entered upon said premises, and without process of law, and contrary to the just rights of the plaintiff in said premises, and while the plaintiff was sick, wickedly and wrongfully caused the said plaintiff to be knocked down and bruised, and to be thrown bodily from and out of the said building on said premises, and to be dragged out from said premises, etc.; *** and that the said defendant caused the goods and chattels of the plaintiff in said buildings on said premises to be thrown in the street, and deprived plaintiff wrongfully of her goods and chattels," etc. Another count in the declaration charged that the plaintiff came into possession of said premises March 20, 1890, by virtue of said contract and agreement and while she was rightfully in possession of said premises an assault was made upon her by defendant, and her goods were thrown into the street. The plaintiff introduced testimony tending to show all of the facts stated in her declaration. The modification of the contract which plaintiff claims was made in October or November, 1895, was an oral modification, and not in writing. It is the claim of the defendant that in the fall of 1895 the plaintiff was in default in her payments under the contract and that proceedings were commenced before a circuit court commissioner to obtain possession of said premises, which resulted in a judgment for restitution in favor of the defendant corporation; that, after this judgment was obtained, an arrangement was made with the plaintiff by which she was to pay rent at the rate of $10 per month, and that her possession from that time was to be as tenant, and not as vendee. The record discloses that on February 21, 1896, the defendant caused a notice to quit or pay rent to be served by leaving it at the house with Mr. Engel, who occupied the lower part of the house as a tenant under Mrs. Smith. Within a week plaintiff had knowledge of the serving of this notice, and filed a bill in equity. In her bill of complaint she claimed to be in possession of the premises as vendee by virtue of the terms of the contract, setting it up, and stating she was ready to perform all of its conditions, and praying for an accounting, and for specific performance, and for a writ of injunction. A temporary injunction was granted, according to the prayer of the bill. Defendant answered to said bill, and upon his motion, on March 30, 1896, the injunction was dissolved. At this time plaintiff was keeping house in the upper part of the house upon the premises. No one was living in the lower part of the house. She had occasion to go to the business part of the city during the day, and before doing so locked the house, and carried the key with her. During her absence, and shortly after the injunction was dissolved, the attorney for the defendant unlocked one of the doors of the house, caused the plaintiff's goods to be removed to the barn upon the premises, and put a family in possession. Upon the same day, and shortly after, the plaintiff returned to the premises, unlocked the side door of the house, and entered. She claims she was then set upon by the persons in possession, and very cruelly beaten; that during her absence her furniture had been thrown out of the house, and that she had never seen it from that time until the time of the trial; that, as the result of the beating, she was sick, and confined to the house, for some time; that as soon as she was able to do so she saw the defendant corporation, was referred by it to its attorney; that she informed the attorney she wanted a deed of the premises, and was ready to comply with the terms of the contract; that he informed her she had been fired out of the premises, and that he had instructed the person who had put her out to keep her out; that, if she went back again, she would be kicked out, and he would have her arrested. On the part of the defendant it was claimed that Mrs. Smith was not treated as she testified; that no more force was used than was necessary to repel her attacks; that she finally left the premises voluntarily; that no injury was done to the personal property, and that she was notified where it was, and that she could have it at any time. The circuit judge charged the jury, in effect, that they could not go back of the proceedings before the circuit court commissioner, which proceedings must be regarded as conclusive, and that the relation of vendor and vendee was ended by them; that the relation of vendor and vendee could not be restored by an oral agreement between the vendor and the vendee. He further charged them that the notice of February 21, 1896, that plaintiff should either vacate the premises or pay the rent due, did not terminate the relation of landlord and tenant; that under such circumstances, if the tenant does not vacate, it is the duty of the landlord to commence proceedings in court, and get a judgment, before a tenancy can be ended; and that in this case, while the entry was, in the eyes of the law, a peaceable entry, it was nevertheless an unlawful entry, and he charged the jury they must find a verdict for some amount in favor of the plaintiff. He then charged them upon the question of damages to her person; and in reference to the damages of the goods he charged the jury as follows:
The defendant insists there are three reversible errors in this case. One is that the proofs do not sustain the cause of action alleged in the declaration, because the cause of action alleged is that the plaintiff was in possession as vendee under the contract, while the proofs show that she was in as a tenant, and that her tenancy had been terminated by the notice, and the court erred in not directing a verdict for the defendant as requested. Another ground assigned to be error is that, as the entry was a peaceable entry of premises to the possession of which the defendant was lawfully entitled, therefore the plaintiff cannot recover. The third claim is that the court erred in his instruction to the jury as to the damages which might be allowed in relation to the personal property. The declaration was not demurred to, but the plea of the general issue, with notice of the defenses heretofore mentioned, was interposed. The gist of the declaration is, not a trespass upon real property, but a trespass upon the person, and to personal property, while the plaintiff was rightfully in the possession of certain real property. We quite agree with the learned trial judge that it was immaterial whether the possession of the real estate by the plaintiff was as vendee, as claimed by her, or as a tenant, as claimed by defendant, if she was in fact lawfully in the possession of the premises; and we see nothing in the pleadings that would prevent a recovery if the facts warranted it. If it be assumed, as it must be, for the purposes of this case, under the proofs, that after the agreement of November, 1895, the plaintiff's occupancy was that of a tenant, the next question to be considered is, did the notice of February, 1896, terminate the tenancy, so that defendant was justified in taking possession of the premises as it did, and using force to put the plaintiff out, when she attempted to repossess herself of the house? Defendant insists it did, and cites How. Ann. St. � 5774; Tayl. Landl. & Ten. �� 531, 532, and note 1; Hoffman v. Harrington, 22 Mich. 55; Hyatt v. Wood, 4 Johns. 150; Ives v. Ives, 13 Johns. 235; Mussey v. Scott, 2 Vt. 82. An examination of the authorities cited will show that the decisions were rendered in cases brought either for trespass to the real estate, or to obtain the possession of the real estate, or where the tenancy was ended beyond any contingency that it might be restored by the act of the tenant. We think with the trial judge that How. Ann. St. � 5774, is to be construed in connection with section 8295, which provides how possession of premises may be recovered, and section 8299, which provides that upon the trial to recover possession of the premises, if it is claimed that complainant is entitled to the possession of the premises in...
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