21 Mich. 464 | Mich. | 1870
The plaintiff in error brought an action on the case for waste against Mrs. Beers, and the following facts appeared on the trial: One Horace Beers died in February, 1859, seized Of the premises described in the record, and on which at that time, and until after the sale made by defendant to one Kean, there was a mill. The defendant in error is the widow of Horace Beers, and at his death became tenant for life of the premises by force of the statute. In 1862, Mrs. Beers conveyed her life estate by deed to Kean, and gave him authority to remove the mill, and he removed it after such conveyance. And finally the premises were sold for'the taxes of 1863. The plaintiffs in error, who were also plaintiffs below, are the heirs-at-law. of Horace Beers. The acts of waste relied on were, that Mrs Beers caused the mill to be removed and suffered the premises to be sold for taxes. The foregoing facts having been shown, the Circuit Judge in substance charged the jury that the plaintiffs could not recover.
The question raised by this ruling is, whether the action could be maintained against the original tenant for life for matters which occurred after she had conveyed all her interest, and when she was not shown to be in possession. The circumstance that Mrs. Beers informed Kean, when he purchased, that he could take off the mill, is quite unimportant, sines her control wholly ceased when she conveyed
Being grantee of her whole interest, his right and ■ authority could neither be enlarged or diminished by her declarations.
It is argued for plaintiffs in error that by the common law, when the estate for life, as in this case, is created by act of law, the original tenant is liable for acts of waste committed by an assignee, and that our statutes in relation to waste have not changed the rule. The counsel for defendant, however, contend that this matter is regulated by Sections 4698 and 4699, Comp. Laws, and that defendant having granted her estate absolutely without retaining possession, she was not liable for the acts charged as waste and which were done and suffered by her grantee. We think the position is correct. Whatever may have been the rule at common law or under the statutes of Marlebridge and Gloucester in relation to the action of waste, we think the action on the case in the nature of waste, which is the form adopted and that authorized by our statutes, was not maintainable against defendant in error on the facts shown. The first section of the statute gives the action against the original tenant for life or the assigns of such tenant respectively, and not against either at the election of the reversioner, and lest it should be inferred from this provision that the original tenant would not be liable in any case for acts done after the transfer of his estate, the next section provides that when such tenant shall let or grant his estate and still retain possession and commit waste, the reversioner may have his action on the case against him therefor.
The second section illustrates the meaning of the first. By specifically giving the action against the original tenant
To support the action of case, therefore, under the statute against the' original tenant for life, it must appear that he committed or suffered the wasteland that he was in possession, if his estate was leased or had been granted.
This view of the statute harmonizes with the theory of an action on the case, which supposes an actual wrong and not one by mere intendment, and it also tallies with the settled* opinion in this country that estates in real property ought to be liberated as far as practicable from the burdensome incidents of the ancient law.
If the tenant for life could not convey his estate without being subject thereafter to prosecution for supposed acts of waste done by his grantee, it would greatly impair the value of the estate in his hands and operate as a serious restraint upon alienation. And the notion that unless the original tenant for life is held liable for the acts of his grantee, he may by alienation introduce a reckless or irresponsible assignee, has not been deemed sufficient by the Legislature to outweigh countervailing considerations.
The judgment of the court below should be affirmed with costs.
