204 Mich. 66 | Mich. | 1918
Plaintiffs, who are husband and wife, brought this action in ejectment to recover from defendants possession of a piece of land 20x30 feet in size, covered by what they term a "little garage.” It is a small portion of the rear end of a property which they purchased on November 12, 1914, from Moses Remer and wife, described as lot 9 and the easterly 27% feet of lot 10, Meier’s subdivision of that part of outlot 37, private claim 182, between Ludden street and Gratiot avenue, Detroit, Michigan. Their purchase constitutes a piece of land 105.75 feet fronting on Mack avenue by 108.4 feet deep. The front-is occupied by a brick building consisting of two stores below and four flats above.
Defendant Cora B. Simons is owner of the property on Mack avenue adjoining plaintiffs’, upon which is located a garage occupied by defendants Fangert and Kuntz who are her tenants. This garage was built in 1913 by Albert Rasch, then owner of both her description and plaintiffs’. A one story wing, or L of this garage, 20x30 feet in size and 14 to 16 feet high, built along the alley, extended upon what is now plaintiffs’ property. .The garage was built of concrete building blocks. This L part was built at the same time as the rest of the building, of the same material and as a part
The testimony indicates that the parties had before them at the time of the trial a plat of the premises and perhaps certain mentioned contracts or other instruments relating to the property which are omitted from the record, leaving somewhat uncertain the time and details of Rasch’s sales of this property. He testified that he “was buying on land contract,” and it is indicated he at first sold in the same way. The conveyances to Remer and Simons of their respective purchases are testified to but not set out at length in the record. It is apparently conceded, however, that ultimately through Rasch’s rights and efforts they each received deeds conveying good titles. The record does contain as an exhibit the 99-year lease from Remer and wife to Rasch of the 20x30 feet in question for an annual rental of $1 dated, and given as Rasch testified, on July 13, 1914, the same day Remer made his final payment and received a deed of his purchase from the holder of the fee. This lease was acknowledged by Remer and wife on November 30, 1914, and on the
It is stated in defendants’ brief that Mrs. Simons acquired the garage property during the early summer of 1914 and has been in possession ever since. This is strenuously denied and it is asserted in plaintiffs’ brief that the evidence is conclusive to the contrary, for her deed is dated November 30, 1914, and there never was any claim that she had an interest in the property before that date. Neither of these conflicting claims find direct support in the record. It does not disclose the date of her deed, or of her contract of purchase, or make plain her right of possession of the garage property before November 30, 1914. As to that Rasch, whose tenants were in possession of the garage from soon after it was built until he sold it, testified, apparently in reference to this disputed 20x30 feet, that he was in possession when the 99-year lease was given and when he assigned whatever rights he had in the premises on November 30, 1914, and says, “Mr. Fangert was in possession of the garage as tenant under me,” while the record contains an identified receipt from Remer to E. C. Simons dated July 16, 1914, for one dollar “in full for rental on Mack avenue, as per lease, for one year.” Herman Fangert testified that he was occupying the garage under a lease from Mrs. Simons, and that he first went into possession on May 14, 1914, after which time he occupied the garage right along, open and doing business every day up to the time he was testifying, and that he was using every day, as a part of it, the wing or L in question.
Just when he changed landlords is not very clear, but we are not impressed with the urged importance of that question. It is admitted by counsel that both parties rely on Remer’s title as a common source, one by deed and the other by lease, while Remer’s title
Upon the trial Goodman’s contention and testimony was directed to the proposition that he was an innocent purchaser in good faith without notice, and that he first learned of defendants’ adverse claim and possession when an abstract of title obtained by a party to whom he had negotiated a sale of the property disclosed a record of this lease. He admitted he had noticed the little garage was on his lot when he bought but thought “a garage belonged to the house.” He also said he thought “they used that for the coal, or anything else” and when asked if there was any door leading from his place into it replied, “I never looked at it,” and positively denied Remer’s testimony that he pointed it out to Goodman when he purchased, explained that the owner had a 99-year lease of the ground on which it stood and gave to the lawyer who acted for both of them in drawing the papers his lease and contract which were all the papers he had from Rasch. The question of direct notice of the lease, upon which considerable testimony was introduced, was clearly an issue of fact for the jury, but it was shown without dispute that the building was there when plaintiffs nurchased, that Goodman then saw it,
“This particular building, in the first place, is such a monstrosity to look at, is so out of the ordinary that it is bound to put one on inquiry by the mere seeing of it. * * * If this man had taken any precaution whatever, made any kind of investigation, he would have discovered that the only entrance was around through the big garage. He would have discovered that the little building on his property was practically a part of the garage, and that it was being used in the garage business * * * but having shut his eyes to all that, and purchased, I think he is bound by it and you will therefore render a verdict that the defendants are not withholding unlawfully the possession of these premises from the plaintiffs.”
We find no occasion to disagree with the conclusion of the trial court that as a proposition of law, under Goodman’s admissions and the undisputed evidence, he had constructive notice of whatever rights defendants had; but apparently the extent and tenacity with which Goodman and the party to whom he was selling asserted ignorance of the nature of that “monstrosity” on his lot tended to obscure the perspective of other questions involved, for it did not follow from the fact of constructive notice sufficient to put plaintiffs on inquiry as to defendants’ rights that the latter were entitled to a directed verdict in their favor. The more serious question involved was, What were those rights
—“if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part, certain attorney, heirs, representatives and assigns, to re-enter into, repossess the said premises, and the said party of the second part, and each and every other occupant, to remove and put out. * * *
“Said party of the second part further covenants that he will not assign nor transfer this lease, or sublet said premises, or any part thereof, without the written assent of said party of the first part.”
The questions which such provisions raise have several times been discussed and passed upon by this court. Randall v. Chubb, 46 Mich. 311; Lewis v. Sheldon, 103 Mich. 102; Marvin v. Hartz, 130 Mich. 26; Wray-Austin Mach. Co. v. Flower, 140 Mich. 452; White v. Huber Drug Co., 190 Mich. 212.
Defendants sought to show knowledge and consent in writing by proof of a receipt to Mrs. Simons, which is not set out in the record, for one dollar in payment of a year’s rent under the lease, signed by Goodman’s 16-year-old daughter under his direction as claimed by defendants but denied and repudiated by him, which at most would raise an issue of fact for the jury.
Defendants’ answer to the contention that the lease was forfeited and a nullity because assigned without the written consent of plaintiff is that this question
It is true that the testimony aside from proving documentary evidence was mainly devoted to the questions of constructive notice and the nature and time of possession by Rasch and defendants, but the sufficiency of defendants’ proofs to establish their right to possession under the lease was denied by plaintiffs’ counsel and its validity for that purpose repeatedly challenged during the progress of the trial, not very helpfully, it may be conceded so far as shown, to the court in construing the written lease and assignment which it was broadly declared more than once were “a scheme put up by Remer to defraud these people out of that piece of land;” but the burden of proof as to their claimed rights under this lease and assignment upon which they relied rested upon defendants who introduced them in evidence as the foundation of their claim, and they were before the court to construe under that claim.
The record does not show that either side proffered any requests or asked for a directed verdict. After they had introduced their testimony and rested both parties without comment turned the case over to the court to deal with, so far as disclosed, and following a few remarks to the jury upon the subject of constructive notice the court directed a verdict for defendants. Plaintiffs’ assignments of error are against the charge of the court in directing, a verdict for defendants, not the rulings of the court during the progress of the trial. Under 3 Comp. Laws 1915, § 14576, error may be assigned on the charge without bringing the matter to the attention of the trial judge. Totten v. Totten, 172 Mich. 565. The direction of a ver
A directed verdict for defendants was not authorized by this record. The judgment thereon is therefore reversed and a new trial granted, with costs of this court to appellants.