135 Mich. 682 | Mich. | 1904
Alanson Thayer, now dead, filed the original bill in this cause June 8, 1896, to remove an alleged cloud from his title. This cloud consisted of the record of a deed of the premises from himself to one Anna 5. Thayer; Anna S. Thayer was alleged to be dead, and her children were made parties; all but one of whom, being nonresidents, were brought in by publication, but did not appear. The other, Edward A. Thayer, answered, admitting the allegations of the bill; and a decree was entered on April 21, 1897, in accordance with the prayer of the bill.
Anna S. Thayer was the wife of Alanson Thayer, and the defendants were their children. The Thayers lived upon the premises prior to Anna Thayer’s death, which occurred in January, 1877, and Alanson Thayer married a second time, about eight months thereafter. This wife filed a bill for divorce on August 9, 1879, and obtained a decree, without alimony, afterwards. After this second marriage, and on December 20, 1877, the deed from Alan-son Thayer to Anna S. Thayer was recorded. The record shows it to have have been dated October 10,1871. Thayer afterwards took the deed from the register’s office, and there is testimony tending to show that he left it for record; a witness named Wakefield testifying that, at a time when he was having trouble with his second wife, Thayer and he had a talk, and he told the witness that he had in his possession a deed to his first wife, that he had made at a time when he was ill, so that, in case he should die, she, and not the children, would control the property, and that he had never made any use of the deed; and the witness advised him that “it was a good time to make use of it to protect himself, and he could still hold the property after she got a bill,” and Thayer said that he thought it the easiest way out of the muss, and would attend to it. Soon after, the fact of its record was published.
‘£ That the said party of the first part shall and do well and truly board, lodge, care for, and support on the premises above described the said second party for and during his natural life, and furnish medical care and medicine when sick, clothe him during his life, pay the expenses of1 his funeral, and further pay him $25 every six months during his natural life, * * * according to contract.”
Complainant had leased and was living on the farm at the time, and Thayer then resided with him, and continued to do so until Thayer’s death, September 19, 1900. Complainant performed the condition of the mortgage.
Complainant, Eighmey, testified that he was ignorant of the record of this deed to Anna hntil a year and a half after he received his deed. Thayer’s original bill was verified by him. It states that he did not execute the deed; that the grantee, Anna, had been dead several years before its date; that the alleged notary was not a notary at the time; and that Sabra T. Anthony, whose name appeared as a witness to the deed, never signed it as such. Upon the last hearing of the case, the original deed to Anna S. Thayer appears to have been produced; also the record of the same. The complainant’s counsel produced the record of commissions and list of notaries kept in the county clerk’s office for the period after 1865, but the last entry was on August 5, 1875. They also showed that Alanson Thayer caused the property to be assessed and insured in the name of Anna Thayer’s estate for many years. Complainant, also introduced the testimony of Alanson Thayer, taken upon the first hearing, April 21, 1897. It was, in substance, that he had owned and been in continuous possession of the property for 35 years, that he did not execute or deliver the deed to Anna Thayer, and that she was not alive on October 10, 1871, the date of the deed. There was no appearance by defendants; hence no cross-examination.
In complainant’s supplemental bill there is a prayer that complainant be allowed the value of his improvements upon the premises, and this was allowed, as already stated. Eighmey took possession under his lease, and paid rent to Alanson Thayer, from whom he obtained possession. Subsequently he obtained a deed, and became tenant in common with the defendants, whose tenant in common had previously been Thayer. Although ignorant of the true state of the title, Eighmey was chargeable with notice of it, and cannot escape liability to account to defendants for the rents and profits upon the ground that he expended them in caring for Alanson Thayer under his contract with him. He occupied the premises under his deed from January 18, 1898, to the present time; and the circuit judge appears to have found
When a co-tenant is allowed for improvements, he should not, in such a case as this, be allowed to recover more than the cost; and not that, if the added value of the land, arising from such improvements, is less than the cost. And, on the other hand, he should not be allowed more than a proportionate share of the cost of the improvements if the value added is greater than the cost, for, if his co-tenant pays a share of the cost, he is entitled to a corresponding share of the profits,— i. e., added value to the property by reason of the expenditure. Again, a co-tenant who asks pay-for improvements must be willing to share the rents and profits of the land, and, from our examination of the testimony, we are convinced that they equal, if they do not exceed, any just allowance for the cost of improvements.
The decree will be modified by striking therefrom the third paragraph, and denying an allowance to either party for rents or improvements. The defendants will recover costs of both courts.