Fenton v. Miller

| Mich. | Jan 28, 1896

Grant, J.

The history of this litigation, and the facts connected therewith, are sufficiently stated in Fenton v. Mackinac Circuit Judge, 76 Mich. 405" court="Mich." date_filed="1889-10-11" href="https://app.midpage.ai/document/fenton-v-steere-7934227?utm_source=webapp" opinion_id="7934227">76 Mich. 405, and Fenton v. Miller, 94 Mich. 204" court="Mich." date_filed="1892-12-22" href="https://app.midpage.ai/document/fenton-v-miller-7936180?utm_source=webapp" opinion_id="7936180">94 Mich. 204. After the decision in 94 Mich., the defendants took a new trial under the statute, were again defeated, and again bring the case to this court for review. We find no evidence in the present record to change the results then reached.

1. It is again urged that the deed from George T. and Jacob A. T. Wendell of their undivided interest to their sister Eliza created an estate in expectancy, and therefore destroyed the relation of tenancy in common. This same question was before us in the former hearing, and decided against the defendants. It is therefore stare decisis. George and Jacob each possessed an undivided interest. Neither had any estate in expectancy to convey. An estate in expectancy is defined in the statute to be “ where the right to the possession is postponed to a future period.” 2 How. Stat. § 5524. In order to create such an estate, some legal title must exist to which the right of possession is postponed to some future period. George and Jacob each owned in fee an undivided interest. This alone they purported to convey. The expression “ as well in possession as in expectancy ” had sole reference to the title conveyed, and not to anything which they might subsequently acquire, by purchase or otherwise.

2. For the purpose of showing ouster, the plaintiff introduced the files in the partition suit, including the plea, which set up a claim of adverse possession, and also the testimony of defendant Miller taken in that case, in which she testified that her claim was based upon her continuous possession from her marriage down to the date of bringing this suit. There is nothing in her testimony inconsistent with the theory that her possession was the same as her husband’s possession, and that both were in possession as tenants in common. The testimony, being entirely consistent with the possession of a tenant in common, did not tend to establish the fact of adverse possession. The truth of the plea was not admitted, and its averments were not binding upon the plaintiff in this suit. It was competent evidence of a denial of the plaintiff’s rights at the time the plea was filed, and therefore of an ouster at that time. This point was in fact decided in the former opinion. See paragraph 3, p. 211, 94 Mich.

We find no error in the record, and the judgment must be affirmed.

The other Justices concurred.