126 Mich. 217 | Mich. | 1901
In 1859, Benjamin Carpenter died seised of two village lots in Lansing, being lots 10 and 12 in Seymour’s subdivision. They descended in equal shares to his five children, subject to the rights of his widow, Maria Carpenter. The widow maintained possession of the premises until her death, in 1885, under an oral arrangement that she should be permitted to do so, consented to by all of the children soon after Benjamin Carpenter’s death, and subsequently acquiesced in, not only by them, but by the grantees who claimed title under the
The defendants do not deny that upon the death of Benjamin Carpenter the land descended to his five children, subject to the right of dower of Maria, but they allege that John I. Carpenter- parted with his interest through a deed to Augustus, given in 1885, and that he never acquired title to Miriam’s interest, for the reason that Abigail C. Rogers took no title under the quitclaim from Miriam, because — First, said deed was not lawfully executed, having but one witness; and, second, its delivery was not proved. We may remark, parenthetically, that, if this point- is well taken, John I. inherited an undivided interest from Miriam in 1880, and that it passed to Augustus under the deed from John I. in 1885. There is still another claim made by the defendants. It is that Maria, the widow, acquired title to these lots by adverse possession against all of her children, or at least against Abigail C. Rogers and her grantees; and that upon her death it passed, under her will, to Frank and Lucy, two of the five children of Benjamin Carpenter, and subsequently to Augustus, by deed from Frank and Lucy. Moreover, it is said that this claim of adverse possession was adjudicated and upheld in a former proceeding. The will of Maria Carpenter is not printed, but the statement is made in the record that it contained a residuary clause devising and bequeathing all of her property, except lot 13, to her daughter Lucy C. Jones and son Frank L. Car
The questions in the case may be summarized as follows:
1. Did plaintiff show a prima facie title? (a) Was the deed to Abigail effective? (b) Was there proof of delivery? ‘ (c) Should either of these questions have been left to the jury ?
2. Was there evidence tending to show that Maria obtained title in fee by adverse possession?
3. (a) Has there been an adjudication of that question sustaining such title; and (6) if so, is it conclusive in this case ?
4. Some questions relating to the introduction of evidence.
The defect in the execution of Miriam’s deed was the absence of a second witness, the only witness being the notary who took the acknowledgment, and who also attested the signature under the words “Signed, sealed, and delivered in presence of.” This deed was recorded after it came to the possession of John I. Carpenter, and a certified copy was introduced in evidence, against defendants’ objection; but it was subsequently stricken from the record, and the original deed was introduced. By striking the certified copy from the record, any error arising from its admission was cured. It is settled in this State that a deed without witnesses is effective to convey the land described in it. See Dougherty v. Randall, 3 Mich. 581; Price v. Haynes, 37 Mich. 487; Baker v. Clark, 52 Mich. 22 (17 N. W. 225); Fulton v. Priddy, 123 Mich. 298 (82 N. W. 65).
John I. Carpenter testified that he was a brother of Miriam. He identified the deed from her to Miss Abigail C. Rogers as one which was turned over to him by Mr. Robson, who had charge of Miss Delia Rogers’ property, in the year 1885, at a time when he procured a deed from Delia Rogers. He testified that he was familiar with Miriam’s signature, and that her signature was upon said deed; and that, upon the day the deed was made, Miriam
We have next to inquire whether the question of adverse possession should have been left to the jury. The widow had an unquestioned right of dower in these premises. She was in possession with her husband, and continued such possession. So far from claiming them as her own at the outset, she insisted on her right to occupy them, and negotiated with the children regarding such privilege. She agreed with them to build a house, and did so, as a consideration for their agreement to permit her to hold the premises. It cannot be claimed that such was a consideration for them relinquishing all title, for in that case they would not reap any benefit. It would be no more than an agreement on her part to build a house on the land if they would give it to her. It is clear that such was not the understanding, as one or another of the children occupied the premises with her as long as she occupied them; in subordination to her right of control, it is true. There is testimony that the widow told her son
The claim that her adverse title has been sustained .by a former adjudication rests upon the following facts: In 1887, John I. Carpenter and a man named Sautelle, whom he had put in possession of the south three acres of lot 10, were sued in ejectment by Frank and Lucy Carpenter, who claimed to own the premises under the will of their mother. It is claimed by the defendants that upon the trial of that case the deed from John I. Carpenter to this plaintiff was put in evidence, and Cora Carpenter was present as a witness, and that in opposition thereto the claim that Maria obtained title by adverse possession was made, and the jury found in favor of the plaintiffs. It is contended that the verdict concludes this case, because both lots 10 and 12 were included in all of the deeds from Miriam to Cora Carpenter, and Frank and Lucy took both lots under the will of their mother; that Sautelle was placed in possession by John, acting as agent for Cora; and that, while not a party of record, she was a witness upon that trial, and the defense was made upon her behalf by John I. Carpenter, her husband, with her acquiescence. The evidence in the case tends to show the adjudication of the question involved in this action. True, it related to other lands, but the adjudication as to such lands, if held by both parties under the same titles and claims as are relied on here, depended on the identical question raised here, and, being decided once, is conclusive between the parties. The action was brought against Cora Carpenter’s tenant and agent, and there is testimony tending to show that it was defended by her through her agent, if not personally. She clearly knew of the action, and was present, asserting her title as a witness, while her husband and agent and her tenant conducted the
It is contended that the plea and notice in the cause-should not have been admitted to prove ouster. The plea and. notice were part of the record, and need not have been formally introduced to make them available for any admission they contained. See Cir. Ct. Rule No. 7. Upon, a former hearing of this cause (119 Mich. 167, 77 N. W. 703) it was held that ouster was admitted by this plea and notice, which settled the question for subsequent trials. It is not an open question on this record.
Upon the trial, plaintiff called A. D. Carpenter as a. witness. It was objected that, being the husband of his-co-defendant, he could not be permitted to testify without her consent. This objection was sustained. John I. Carpenter was then called, and permitted, against defendants’’ objection, to testify to statements made by A. D. Carpenter upon another occasion. It is urged that such admissions were open to the same objection. This is doubtless true so far as the interests of the wife are concerned, but, as he was himself a defendant, his admissions, if not his testimony, were admissible against him.
The judgment is reversed, and a new trial ordered.