Vandoozen v. Dayton

• Decision Date: 12 January 1881
• Citation: 7 N.W. 814,45 Mich. 247
• Court: Michigan Supreme Court
• Parties: VANDOOZEN v. DAYTON.

7 N.W. 814

45 Mich. 247

VANDOOZEN v. DAYTON.

Supreme Court of Michigan

January 12, 1881

In an action of trespass quare clausum, the declaration alleged a breaking and entering by defendant of plaintiff's close but made no further assertion of title. Defendant pleaded the general issue Held, that under such plea he might show that at the time of the trespasses complained of he was in peaceable possession of the premises, and title in plaintiff was not admitted by the pleading.

Error to Ingham.

E.D. Lewis, for plaintiff in error.

M.V. &amp R.A. Montgomery, for defendant in error.

COOLEY J.

This case originated in justice's court. The declaration was in trespass quare clausum, and omitting formal parts, was as follows: "For that the said defendant on the tenth day of December, A.D.1873, and on (divers other days and times between that day and the ______ day of September, 1874, the close of the said plaintiff, situate in the township of Locke, in said county, and known and described as being the N.E. 1/4 of section 8, in township 4 N., of range 2 E., state of Michigan, broke and entered and with his feet in walking trod down, trampled upon the grass of the plaintiff, growing there, and with his hands, and with axes and other implements, broke open the house of the plaintiff on said premises, and cut, broke and otherwise injured the floor ceiling, doors, windows, walls, door-casings and under-casings of said house of the plaintiff, and other injuries to him, the said plaintiff, then and there did against the peace of the people," etc. The defendant pleaded the general issues merely, went to trial and recovered judgment, and the plaintiff appealed to the circuit court.

The statute provides that in every action where the title to any lands shall in anywise come in question, any claim to the title to lands made by the plaintiff in his declaration, and therein described, shall be deemed to be admitted by the defendant, unless he shall give notice under the general issue showing that the title to lands will come in question and give the bond for which the statute provides, for the transfer of the cause to the circuit court. Comp.Laws, �� 5326, 5329. The notice and bond were not given in the justice's court in this case. On the trial in the circuit court the plaintiff gave evidence that he resided in Lansing; that between Christmas and New Year's, 1873-4, he visited the place and found a family in the house named Hilliker. He directed them to get out, and understood that they did so shortly afterwards. In the spring following he went there again and found defendant there, who admitted that he had been making hoops in the house, and also that he put Hillker in. Plaintiff then described the injury that had been...