Wheeler v. Smith

• Decision Date: 08 July 1886
• Citation: 62 Mich. 373,28 N.W. 907
• Court: Michigan Supreme Court
• Parties: WHEELER and another v. SMITH.

28 N.W. 907

62 Mich. 373

WHEELER and another v. SMITH.

Supreme Court of Michigan

July 8, 1886

Error to Livingston.

Thos. J. Davis, for plaintiffs and appellants.

D Shields and Luke S. Montague, for defendant.

MORSE J.

This is an action of ejectment to recover the possession of 40 acres of land in the county of Livingston. John R. Mason, then the owner of the premises in fee, conveyed this land, by warranty deed, dated November 15, 1865, and properly executed witnessed, and acknowledged, to William Wheeler, husband of the plaintiff Bridget and father of the plaintiff William L Wheeler. Wheeler never recorded his deed, but moved upon the premises, then unimproved, built a log house and stable, and occupied them about two years, clearing up and chopping 10 or 15 acres. In April, 1868, the plaintiff Bridget was sick and, with the consent of her husband, went to East Saginaw, to her mother's, leaving her husband on the farm with all the household goods. She remained at Saginaw about one year. While she was away, and in November, 1868, John R. Mason, with the full consent and at the request of her husband, William Wheeler, executed another deed of the land to Andrew Bly, but without the knowledge or consent of the wife. It seems that Wheeler wrote upon the back of the deed from Mason to himself as follows: "I hereby give up this deed, and authorize and request John R. Mason to deed the premises to Andrew Bly." In 1869, Bly deeded to one Love, who, in the same year, conveyed to one Andrews. In 1870 Andrews deeded the premises to one French, who, in 1872, conveyed back to Andrews again. October 5, 1872, Andrews, having the title, conveyed to the defendant, who has since owned and occupied the same. These deeds were all warranties, and recorded. William Wheeler, after or about the time of the deed from Mason to Bly, moved off from the premises, and went to Fenton, Genesee county, to live, where his wife found him. He or his wife never transferred the premises by deed to any one. They lived together at Fenton about 12 years, Wheeler dying in 1881. They rented a place in Fenton in the spring of 1869, and in the fall Wheeler purchased it, the deed being taken in the name of the wife. The property in Fenton was a frame house and four village lots, and cost $950.

After the death of her husband, Mrs. Wheeler commenced an action in ejectment to recover her dower in the same premises involved in this suit. The case will be found reported in 21 N.W. 370. We there held the defendant, Smith, a bona fide purchaser of the land, and the unrecorded deed to Wheeler void as against him, and denied the plaintiff right of dower in the premises. We said in that case: "Whatever plaintiff's rights may have been, they depended solely on the unrecorded deed to her husband. Under the statute, defendant's honest purchase, made under previous bona fide purchasers, left this precisely as if it had never...