211 N.W. 638 | Mich. | 1927
Plaintiff filed bill to quiet title. About 1874 William Farrand owned and had legal and record title to lot 1, section 1, township 27 north, range 9 east. Plaintiff testified that about that time Farrand deeded to him the south five acres of the lot; that he entered into possession of the parcel, and that shortly thereafter his deed, which had not been recorded, was destroyed by fire which consumed his dwelling. He left the land and has not been in possession thereof since, nearly 50 years, nor has he paid: taxes. In 1875 Farrand conveyed said lot 1 by warranty deed to Craig, which deed contained the following exception, quoting:
"excepting five acres sold to Thomas Fleming from the south side of said lot."
This deed was duly recorded. The interest of Craig in the land later passed by quitclaim deeds to defendant Conklin. These deeds did not except the five acres. A purchaser of lot 1 at a tax sale also conveyed to Conklin and his wife by quitclaim deed. The Conklins mortgaged lot 1 to the defendant the Alcona County Savings Bank. Plaintiff's bill alleges that he owns the five acres because of and under his lost and unrecorded deed, makes the Conklins and the bank defendants, recites the several conveyances to defendants above noted, and prays that the same be set aside as to the five acres, and that his title be quieted. Lot 1 is wild and unoccupied. It is on Lake Huron. The Conklins, when the bill was filed, had leased the lot, *245 with other lands, to commercial fishermen, who paid rent, that they might enjoy claimed exclusive rights to fish in the waters in front of the land, and by such leasing and by such use by the tenants the Conklins claim to have had possession at the time of suit and for years prior thereto. Plaintiff contends that although the record of title indicated, by the noted exception in the deed to Craig, that he, plaintiff, had some interest in the five acres, no notice of reconveyance has been given to him as required by section 4138, 1 Comp. Laws 1915, and that therefore the tax deed is void as to his land. Plaintiff also insists that defendants failed wholly to substantiate their defense of adverse possession. Judge Widdis expressed doubt of the claims advanced at the hearing, but he disposed of the case as it was made and presented to him by counsel for the parties, and gave plaintiff decree. Defendants have appealed.
The decree must be set aside. The theory of the bill is that plaintiff has legal title. It does not allege and the evidence does not show grounds for equitable relief. Plaintiff is not in possession. What is the nature of defendants' possession? It is something more than constructive possession, which is a fiction of the law theoretically following in the wake of title.People, ex rel. Turner, v. Kelsey, 96 N.Y. App. Div. 148 (
Plaintiff, on the theory of the bill that he had legal title, ought to have brought ejectment. 'He cannot prevail on the weakness of defendants' title. He must prevail, if at all, on the strength of his own title. His own allegations of title must be substantiated. Stockton v. Williams, 1 Doug. (Mich.) 546. But he has equitable title merely. He needs the aid of equity to perfect and to establish his title, to establish his deed. Allen v. Waldo,
It appears by the record that three principal interests are necessary to a proper determination of the ownership of the five-acre parcel.
(a) The Conklins will own it if either their claim of title by adverse possession, or under the tax deed be sustained.
(b) If the Conklins fail, plaintiff Fleming will own it if his deed be established.
(c) If both the Conklins and Fleming fail, Farrand will own it, if he is living, if not, then his heirs at law. And, of course, the mortgagee is a party of interest.
As to whether all the parties of interest may be joined in one action we express no opinion. We do not pass on the validity of the tax deed, nor do we *247 indicate whether defendants' possession is or ever was adverse as that term is defined in law.
The decree is set aside. The cause is not dismissed but is remanded. Defendants will have costs in the circuit court. No costs are awarded in this court.
SHARPE, C.J., and BIRD, SNOW, STEERE, FELLOWS, WIEST, and McDONALD, JJ., concurred.