Taylor v. Gladwin

• Decision Date: 21 January 1879
• Citation: 40 Mich. 232
• Court: Michigan Supreme Court
• Parties: Theodore Taylor, Solomon Sutherland and Clara Quackenbush v. Mary C. Gladwin

40 Mich. 232

Theodore Taylor, Solomon Sutherland and Clara Quackenbush v. Mary C. Gladwin

Supreme Court of Michigan

January 21, 1879

Submitted January 15, 1879

Error to Washtenaw. Submitted January 15. Decided January 21.

Judgment affirmed with costs.

Alpheus Felch for plaintiffs in error. If a certificate of execution is not filed during the statutory period and while the right of redemption lasts, the purchaser loses his title to the premises, Doyle v. Howard, 16 Mich. 261. Where one in possession claimed in fee under a quitclaim from a tenant in common, it was held not to be such an ouster of a co-tenant as would sustain ejectment, Edwards v Bishop, 4 N.Y. 61, nor can it be maintained to recover a mere easement, 3 Kent's Com., 419; Child v Chappell, 9 N.Y. 246; Jackson v. May, 16 Johns 184.

Brennan & Donnelly for defendant in error. The sheriff's failure to file a certificate of execution sale will not divest the purchaser's title, Jackson v. Young, 5 Cow. 269; Howard v. North, 5 Tex. 290; Rorer on Jud. Sales. [2d ed.] §§ 718, 719.

Campbell, C.J. The other Justices concurred.

OPINION

Campbell, C.J.

Mrs. Gladwin, formerly wife of Charles G. Sutherland, obtained a divorce from him, with a decree for $ 2,000 alimony, for which execution issued out of the circuit court for the county of Wayne, under which she bid in one undivided third of certain premises in Washtenaw held in common with defendants Sutherland and Quackenbush, under whom Taylor held most of the building on the land as tenant. She brought ejectment for this undivided third and recovered judgment. The declaration claimed the use of an adjacent alley, and the judgment included this, but the finding is silent on the subject. Such an interest is not the subject of ejectment, as it is an intangible and incorporeal easement. Grand Rapids v. Whittlesey, 32 Mich. 192; Bay County v. Bradley, 39 Mich. 163. Being of such a nature the recital of such a right in the judgment is nugatory, and cannot affect its validity.

The objections to Mrs. Gladwin's recovery were based on supposed insufficiencies in the finding and on alleged illegalities in the execution and sale.

The objections that there is no finding which shows defendants below in possession of all the property, and no finding of ouster, rest on the supposition that no part of the finding of facts is contained in that part of the finding headed conclusions of law. As every finding is one and entire, and stands in lieu of a special verdict, we must receive everything evidently intended as facts found, no matter in what part it is set forth. It would have been better to place all such matters by themselves, but the separation does not make the document imperfect. The case finds that Taylor is in possession of most of the premises, and that the other defendants enjoy and control the whole, and all unite in disputing the validity of plaintiff's claim. It also shows that one of the defendants claims the very title which Mrs. Gladwin asserts as her own.

There is therefore no further question except as to the validity of her title.

It is claimed first, that the decree for alimony is void because a gross sum instead of an annual payment. It is sufficient in this regard to say that inasmuch as the circuit court of Wayne county had jurisdiction over the divorce suit, it had jurisdiction to grant alimony, and that for this reason, if any decree is regarded as improper, it should have been complained of by appeal. There is no possible ground on which such a decree can be regarded as void. We need not consider whether the objection is well founded. The practice is now expressly authorized by statute, and there are many considerations...