Clark v. Gage

19 Mich. 507 | Mich. | 1870

Graves J.

This was a proceeding instituted before a Circuit Court Commissioner, to recover the possession of land in the summary manner, authorized by chapter 133 of the revised statutes of 1846.

The complainant Gage recovered judgment before the Commissioner, when Clark carried the case by appeal to the Circuit Court where judgment was again given in favor of Gage.

The defendant Clark now brings error in this Court, and claims that the complaint upon which the trials below were had, did not contain a sufficiently certain description of the real estate, of which Gage sought to recover possession, to warrant a judgment of restitution, after objection made upon the ground of such supposed insufficiency.

The objection to the complaint was taken before the Commissioner and was judged untenable ; and was afterwards on appeal specifically raised and overruled in the Circuit Court; and that decision is now explicitly assigned for error. The point is therefore open, for discussion in this Court. Laws 1861, pp. 465, 466; Sallee v. Ireland, 9 Mich., 154; Farrell v. Taylor, 12 Mich., 113.

The statute (Laws 1867, pp. 88, 89,) requires that the complaint, which is the foundation of all the subsequent proceedings, should “ describe the land or tenements ” in question, and the defendant can only be found guilty of an unlawful detention of the whole or some part of the premises as they stand described in the complaint. — § 5,001 Comp. L.

The writ of restitution must necessarily follow the judgment based on such finding and guide the officer in putting the complainant in possession.

Neither the Commissioner nor the Circuit Court would be authorized to direct the officer in this regard in any other manner than by means of the writ, nor could they exercise that control over his action, which courts have sometimes exerted in ejectment, in case of indefinite description in the writ of possession.—Cottingham v. King, Burr., 623; Connor v. West, Burr., 2,672; Seward v. Jackson, 8 Cowen, 427.

Although the statute has not expressly suggested the degree of precision with which the premises should be described, the nature of the proceeding itself and the circumstance that the law declares that the lands or tenements shall be described sufficiently, indicate the necessity of a description so definite and intelligible as prima facie to designate and identify the premises intended.

The complaint is of the nature of a pleading, Caswell v. Ward, 2 Doug., 374 and the degree of certainty with which it should describe the premises, should be measured by the rules of pleading, rather than by those which govern contracts.—Sedgwick on St. and Const. Law, 261-262. See also Noy 7, Johnson v. Heydon, Br. Abr. Feoffment, pl. 14.

This distinction has been frequently recognized and applied. In Miller v. Miller, 16 Pick., 215, a partition was prayed by a petition which set forth that the petiti.on.er was seized, etc., of an undivided moiety of one-fourth of an acre of land, on which a saw mill formerly stood, on a stream of water called Fall Brook, with the lands on which the log ways of said min were laid, together with the dam across said stream, and the privilege of the water thereof, and the appurtenances to said lands and tenements belonging, which said lands and tenements are situated in said Middleborough, and said dam is the same dam by means of which a head of water was formerly raised for the working of the Fall Brook Furnace; and that he claimed such moiety as conveyed to him by John Miller, by deed dated March SO, 1775, recorded in the registry of deeds, and produced in court.

It was objected that the petitioner had not set forth with sufficient certainty the premises to be divided, and the Court held that the description was too indefinite and uncertain to be the basis of a judgment. Chief Justice Shaw in deciding the case said: a The degree of certainty sufficient in a deed of conveyance, would often be insufficient in a legal process, because in the former an indefinite description may be made good by evidence aliunde. For this reason the reference made to a deed given to the petitioner sixty years ago, as well as for the obvious one that in such a length of time, the local objects and circumstances may have greatly changed, cannot help the uncertainty. Reasonable certainty is necessary in a petition for partition, to enable the respondent to traverse the petitioner’s seizin, to enable the Court to decide how partition shall be -made, and to enable Commissioners, after an interlocutory judgment, to ascertain the estate to be divided.

In Atwood v. Atwood, 22 Pick., 283, which was a writ of dower, the declaration described a parcel of land in lot No. 5 as bounded on two sides by land of the tenant, without giving the other boundaries, and referred to a deed of W. Blinn, and its place of record for a particular description. On motion in arrest of judgment for the insufficiency of the description, the objection was sustained and the Court said; — “ In the description of the land within that lot (No. 5) reference is had to Blinn’s deed, and unless the description can be aided by that reference, it is not sufficiently definite and certain. — And it is very clear that it cannot he thus aided. Such a reference would he good in conveyance of the land, or in a demand of dower before action brought, as has been already remarked. But when lands are demanded, the description of them must be so certain that seizin may be delivered by the Sheriff without reference to any description dehors the writ. It is not necessary in every case to describe the land demanded by metes and bounds, but there must be a certain description in the writ itself, and no defect can be cured by a reference to any existing conveyance.”

In Flagg v. Bean, 5 Foster, 49-65, which was a writ of entry, the Supreme Court of New Hampshire quoted, with approbation, the foregoing passage from the opinion in Atwood v. Atwood, and held that the description of the premises demanded in a real action, would not be aided, enlarged, or restricted by reference to any other instrument.

Without adopting the extreme view that the description required in a complaint should be so explicit as to enable the Sheriff to deliver possession without reference to any extrinsic facts, it is believed that the principle pervading these cases is a clear and correct authority for holding that the certainty requisite in a complaint in this class of cases, is not attained by a bare reference to a deed or other instrument; and further that such reference when made will not have the effect to help an otherwise insufficient description.

It is not possible to , define with perfect exactness the kind of description which will suffice in all cases; but it may be stated as a general rule that it should be so precise as prima facie to give to the defendant who is to answer to the complaint, the tribunal appointed by law to decide upon it, and the officer who may be required to put complainant in possession, a distinct 'idea of the very premises in question.

The degree of precision which is here indicated may be attained, and yet from the nature of the subject matter and its surrounding objects, the officer on executing a writ of restitution or possession may find it necessary to instruct himself in local circumstances in order to act correctly. But any necessity of that kind would result from unavoidable difficulties belonging to the subject matter, and not from any defect in the proceedings on paper.

In the case before the Court, the complaint described the premises as “a farm in the town of Quincy, in the said county, lately occupied by complainant, being the same farm mentioned in the writing executed between the said Clark and complainant and dated November, 24, 1866> by which complainant let the said farm to the said Clark.” This averment does not state when the premises were occupied by complainant, nor does it in any other manner appear to identify them, except by reference to a writing alleged to have been executed by the parties on the 24th of November 1866, by the way of lease. It does not specify the premises by any name, or number, or describe them by boundaries, abuttals, monuments or any characteristics which might distinguish them upon the record, nor is there anything to warrant the supposition that a more definite description was found impracticable.

Rejecting the naked reference to the paper executed by the parties, as totally insufficient to give to the complaint any greater certainty than it would otherwise possess, the description is seen to be wholly indefinite and insufficient in a proceeding like that in question.

It was likewise assigned for error, that the writ issued by the Commissioner was not in the form, nor made returnable within the time, prescribed by law; but as these points were abandoned by the plaintiff in error, we do not consider them.

The judgment below should be reversed with costs.

The other Justices concurred.