130 Mich. 213 | Mich. | 1902
This is an action of ejectment. It was. tried before a jury. The case is brought into this court by writ of error. In its facts it is almost like the case of Carpenter v. Carpenter, recently heard in this court, and reported in 126 Mich. 217 (85 N. W. 576). In this, case the title to the undivided one-fifth of lot 10 is involved, while in the other case it was the title to the undivided one-fifth of lot 12. The case of Carpenter v. Carpenter, supra, was pending in this court when the case now under consideration was tried in the circuit court. It is. probable, if the opinion in Carpenter v. Carpenter had been handed down before the trial of this case, this case would not now be here. A reference to the reported case-of Carpenter v. Carpenter will make a long statement, of facts unnecessary.
Upon both trials three defenses were interposed: First, that there was no delivery of the deed from Miriam Carpenter to Miss Rogers, through whom, by mesne conveyances, plaintiff claims title; second, adverse possession;, and, third, res adjudicflta, because of an ejectment suit wherein defendants Frank L. Carpenter and Lucy G. Jones were plaintiffs, and John I. Carpenter and one Sautelle were defendants. As to the third defense, the circuit judge held it was not made out, and charged the jury in favor of the plaintiff as to that defense. As to the other two defenses, the court allowed the jury to pass upon them. The jury found there was am delivery of the deed, and the-judge entered a verdict for the defendants.
As the coxxrt decided the third defense in favor of plaintiff, and defendants took no appeal, and the bill of exceptions was settled in view of having plaintiff’s assignments of error passed upon, and the record discloses that some of the testimony as to what issue was tried in the ejectment case against Carpenter and Sautelle is not incorporated in the record, we do not think we can -now definitely settle that phase of the case.
Upon the cross-examination of witness John I. Carpenter, the court allowed testimony to be given that he had presented a large claim against the estate of his mother, which was disallowed, and also that he contested her will, which will was duly probated. This testimony was not germane to the issue involved, and the objection to it should have been sustained.
In view of the conclusions we have reached and herein expressed, it will not be necessaxy to discuss the other assignments of error.
The judgment is reversed, and a new trial ordered.
