38 Mich. 132 | Mich. | 1878
Mason sued Kellogg on the covenant for quiet enjoyment contained in Kellogg’s deed to Mason’s predecessor in title, Mary Ann Phillips, for lot sixteen of Sill’s addition to Kalamazoo. The circuit judge ordered
In some of its aspects the case has an importance beyond its bearing upon the interests of the immediate litigants. Before proceeding to ascertain the state of the case in point of law, a reference is necessary to several of the main facts. March 17th, 1849, the property was owned by one Healey, and he then conveyed to John H. Campbell, and in the succeeding April Campbell died seized and intestate. He left a widow, Caroline Campbell, and two children, Franklin and Sabina Campbell, his only heirs at law. The widow subsequently married again, and has since died. Franklin, who is now thirty-seven, removed to California at nineteen, and Sabina intermarried with one Sterling. August 22d, 1853, the probate court of Kalamazoo county upon his petition-, appointed one William T. Campbell administrator on the estate of said John H. Campbell. September 22d, 1854, the administrator reported to the court that he had sold lot sixteen of Sill’s addition on the 18th of the same month under a license of July 24th, 1854, therefor, to George Thomas Clark for $200. September 25th, 1854, the court entered an order confirming the sale and directed a conveyance to Clark, and on the 8th of the following December a deed was given by William T. • Campbell as administrator to Clark, and apparently to complete the public sale. On the next day, namely, December 9th, 1854, Clark made a deed of the property, and purported to convey it to said William T. Campbell in his private character for $200. July 25th, 1855, William T. Campbell conveyed to Tobias Johnson for an expressed consideration of $3,050, and on March 19th, 1862, Johnson conveyed to the defendant Kellogg for $3,500 as stated in the deed.
May 7th, 1864, Kellogg conveyed to Mary Ann Phillips for the named consideration of $2,400. September 30th, 1865, Mary Ann Phillips conveyed to Calvin N. Mason for $3,000, and March 12th, 1866, Calvin N. Ma
December 12, 1871, Franklin Campbell conveyed whatever interest he had in the lot in question to his sister Sabina Sterling.
February, 1872, Mrs. Sterling brought ejectment against Henrietta Mason, Calvin C. Mason and Emily Mason. The same counsel who appear for the plaintiff here then represented the defendants. September 27th, 1872, a plea of the statutory general issue was filed accompanied by a notice of special matter. This was in place and by way of amendment of previous pleadings. The notice set up that defendants would prove and insist that the lot claimed was formerly owned and possessed by John H. Campbell; that he died leaving it a portion of his estate; that William T. Campbell was appointed administrator of such estate; that in the course of administration said administrator was duly licensed to sell the lot, and pursuant thereto and in accordance with the statute did sell and convey it to George Thomas Clark;
February, 1875, the cause was tried, and on the 24th “the jury found defendants guilty of unlawfully withholding possession from the plaintiff and that she was entitled to the property in fee.” They also found that the lot was enhanced in value by improvements $1,650, and that it would have been thus worth $1,200 without the improvements, and in answer to a specific question they found in effect that the purchase apparently made by Clark at the administrator’s sale was actually a purchase by the administrator himself in his individual behalf.
February 26, 1875, the court entered judgment on the verdict. It recited all the findings except the answer to the specific qitestion, and adjudged that the plaintiff recover possession of the defendants on her paying into court $1,650, the amount of the improvements with interest thereon, at any time within a year from the date of the judgment and that she thereupon have a writ of possession according to the form and effect of the recovery. And further that if she should at the same or the next term elect on record to abandon the lot to the defendants at its value as found, that in that event she recover against the defendants $1,200 with her costs and charges to be taxed, and that the judgment be and continue a lien on the lot according to the statute. The costs were taxed at $131.57.
May 20th, 1875, the plaintiff filed her election to aban
In view of the peculiarities of the case it is deemed advisable to notice several questions brought-under discussion although they are not material to the result reached.
A point is made by defendant that the plaintiff is not in a situation to complain of any rulings adverse to him, because, as is said, it appears affirmatively he had no right of action when the suit was commenced, and he grounds this claim on the force and effect which he ascribes to the particular provision in the plaintiff’s deed concerning the temporary right of possession of the lot.
He contends that this provision created a distinct right of possession and enjoyment, which had not expired, and hence the plaintiff had not come into any right liable to disturbance within the protective scope of the covenant. The point is confined to the right of action and does not apply to the measure of recovery.
We shall not refine on the clause in question in the deed. We think the plaintiff immediately acquired an interest through the deed to which the old covenant applied.
The grantors do not appear to have retained any thing. The grant was to the plaintiff in fee with, a qualified use to him and his mother and sister for a term limited to a few months, and which might be cut short by the occurrence of his mother’s death sooner. Let it be admitted that plaintiff and his mother and sister were vested with a right to the land itself under this clause. Shep. Touch., 93; Co. Litt., 4 b.; Green v. Biddle, 8 Wheat., 1, 76. Let it be conceded that in virtue of being entitled to the described special kind of use and enjoyment for the time
The plaintiff’s counsel argues that the court erred in ruling out his efforts to show by Mr. Turner who aided in trying the ejectment suit on the part of Mrs. Sterling, that she made claim of title paramount to that derived from Kellogg.
The first question put to Mr. Turner was held improper, but simply on account of its form. An> exception was taken. It is not certain that the court was mistaken in thinking the question was not in proper form, but it is certain that in judging of the form only, the court exercised a discretion vested by law in the trial judge, and does not appear to have prejudiced the plaintiff. Immediately after this ruling the counsel, intending apparently to conform to it, varied the form of the question and then, upon objection by opposing counsel, the court ruled that it was premature, and suggested the necessity of first establishing another fact. Other testimony was then introduced bearing on the fact mentioned by the court and the subject was again brought up by a question and
Where a title guarded by covenant is assailed by action upon a ground which, if adjudged valid, would involve infringement of the covenant, the holder of such title on being so sued may give proper notice to the covenantor and require him to defend; and having done this, if the ease in which notice is given results adversely to him, and he thereupon sues on the covenant he will be relieved from making proof, except by the judgment itself, of the truth and force of what was there adjudged. But the giving of notice is no part of his ground of action; neither is it a necessary prerequisite to his recovery on the covenant. He may still maintain his action, but without the advantage secured by notice, the effect of that proceeding being not to create or help create a cause of action or supply any preliminary in law to the right to institute suit on the covenant, but to place the covenantor in such relation to the ejectment case or primary action as that the judgment in it, if adverse, will conclusively bind him in the suit on the covenant.
If, as supposed in the view now being taken, the thing determined in the prior case is the same thing which works the breach of covenant complained of, then, whether the covenantor was well warned or not, the judgment is a piece of lawful evidence in the action upon the covenant, the difference being that if it turn out that the covenantor was not adequately warned, — was not in substance a party, — the judgment, instead of being final as against him, is merely prima facie evidence of the validity of the title it purports to validate, and is disputable.
But another consideration occurs in this connection.
The plaintiff claimed below that immediately upon the commencement of the ejectment suit he and his co-defendants therein notified Kellogg thereof and requested him to assume defense, and that he actually took part in defending. These claims the defendant controverted.
That no notice was given in writing was conceded, and it was virtually admitted at the 'same time that soon after the ejectment was commenced, and at various times during the progress of the cause, Kellogg conversed with the attorneys of the defendants therein as to the course to be pursued, and took an interest in the defense. Considerable testimony was given by each side on this branch of the case and it was quite conflicting. It was offered upon the point of his having been distinctly and explicitly notified in the sense in which that proceeding is now understood, and it was also offered in regard to the nature and extent of his connection with the conduct and management of the defense.
The counsel for the defendant insisted below and insists here that parol notice is not good. The point has not been adjudged in this State, and the proper practice in this particular is to be now settled. On looking abroad
Every reason proper to be urged for this rule must apply with great force to the notice in question. If a mere verbal notice is allowed to answer, a wide door is opened to mistake, misapprehension and misunderstanding and all manner of uncertainty, and the practice does little less than invite expensive and perplexing contests about a matter which ought to be as simple and certain as the service of a declaration. The controversy which has appeared in this case may be expected to be repeated frequently, and important interests connected with the title to real property be made to turn on the uncertain issue of such dubious disputes.
The dissenting opinion of Judge Bronson in Miner v. Clark, 15 Wend., 425, is replete with strong sense, and
Had due notice been given in writing in the suit brought by Mrs. Sterling, all the contention, confusion and uncertainty which have arisen, not only concerning the fact of notice and its aptness to make known distinctly all the particulars proper for it, but concerning also Kellogg’s actual connection with the defense and his influence upon it, would have been entirely avoided.
But his true position as an actor about the case could possess no importance whatever except upon the assumption that he was not duly notified, and the controversy about it with all its uncertainty has arisen only as a natural consequence of the reliance placed upon conversation as a medium of notice, and is one of the very mischiefs which go to prove the unsoundness of the practice which gives sanction to such a notice. The reason which requires the rejection of the one applies to the other. We are therefore of opinion that the want of proper notice is not obviated by a case made up of indeterminate and conflicting showings in regard to Kellogg’s actual connection with the defense and the extent of it.
Had it appeared beyond fair controversy that Kellogg was reasonably apprised that it was in his power to assume the entire defense and exercise complete control of it, and that not protesting want of due notice he actually accepted the opportunity and did what he chose, then I should say he waived formal notice and subjected himself to the same extent that he would have done if properly notified., Taylor v. Clemson, 11 Clark & Fin., 610; Parish v. Gilmanton, 11 N. H., 293.
In this, however, I assume to express only my own opinion. It is sufficient that the record before us presents no such case. We cannot agree with defendant’s counsel that the ejectment proceedings were intrinsically inappropriate to denote a breach of the covenant.
The findings and judgment pursued the general law as
The separation, it is true, was not by metes and bounds or by fractional distinctions, but by valuation. Mrs. Sterling» succeeded in getting all but the improvements. If a conflagration had swept them away, nothing would have been left.
The principle is clear enough. Physical expulsion from the lot or some part of it was not necessary. Compulsory surrender of a part of the value must surely be enough, and so much the judgment accomplished. Less has been deemed sufficient in well considered cases. McGary v. Hastings, 39 Cal., 360: 2 Amer., 456; Drew v. Towle, 30 N. H., 537; Poyntell v. Spencer, 6 Penn. St., 254; Sterling v. Peet, 14 Conn., 254; Hamilton v. Cutts, 4 Mass., 350; Woodward v. Allan, 3 Dana, 164; Home Life Ins. Co. v. Sherman, 46 N. Y., 370; Cowdrey v. Coit, 44 N. Y., 382. See also Loomis v. Bedel, 11 N. H., 74; Turner v. Goodrich, 26 Vt., 709; Brown v. Dickerson, 12 Penn. St., 372; Hanson v. Buckner, 4 Dana, 254; Whitney v. Dinsmore, 6 Cush., 124; King v. Kerr, 5 Ohio, 155.
We may assume for the purpose of this case that the proceedings and judgment in the ejectment suit afforded
It was hence competent for him to show that the title derived from the sale by the administrator of John H. Campbell, and being the title he had covenanted for, was valid notwithstanding the case of Mrs. Sterling, and as both sides traced title to John H. Campbell, it was not necessary to show the origin of John“H. Campbell’s title as a foundation for proof by Kellogg that the sale by John H. Campbell’s administrator was valid. The defendant pursued this line of defense, and in doing so gave in evidence the proceedings before mentioned connected with the administration of John H. Campbell’s estate and the sale to Clark, and also the bond given by the administrator on his appointment. He also showed the transmission of this title as we have seen through different conveyances from Clark to Kellogg.
In the course of the introduction of this proof the plaintiff’s counsel made several objections which the court overruled. They do not require to be separately noticed. The views hereafter stated will dispose of them.
It may be assumed, perhaps, that it would be claimed by counsel that the second section of the act of 1867, Comp. L., § 4255, was intended to affect only future trans
It appeared that at the time when the ejectment suit was brought there had been such holding and possession as here specified. The deed by the administrator was henee prima facie evidence by force of the statute, of the regularity of the title passed to Clark, and that title seems to have been regularly transmitted to Kellogg without intervening defect.
The result at the least was therefore in this state of things that the plaintiff’s evidence of the failure of Kellogg’s title was neutralized; the prima facie evidence conceded to the proceedings in the ejectment being met by the prima facie evidence afforded by the administrator’s deed; and the plaintiff as holder of the affirmative, and bound to support it by a preponderance of proof, failed to do so.
No stress is here placed upon the other probate matters adduced in alleged compliance with the requisites of the previous part of the section referred to, since there are questions of some difficulty which would have to be settled before admitting the correctness of the defendant’s view of that feature of the case.
The plaintiff sought to rebut the ground of defense, based on the administrator’s deed by showing that the sale by the administrator was a collusive transaction between him and Clark, and was in fact a sale to him and not to Clark; and to establish this he offered Clark’s testimony given on the trial in the ejectment ease, the
In case due notice had been given to Kellogg in the ejectment and he had been given opportunity to exercise complete control and accordingly to cross-examine Clark, the objection probably would have been invalid. Doe ex dem. Foster v. Earl of Derby, 1 Adol. & Ell., 783. But if that practice had been pursued it is not perceived that there could have been any cause for requiring Clark’s testimony for the purpose for which it was proposed. The force of the judgment would have saved any occasion.
In the view of some members of the court the offer made was subject to the further difficulty that it did not appear and was not proposed to be shown that Kellogg had any notice or means of knowledge of the alleged secret and collusive arrangement between the administrator and Clark, or that he was not in the most absolute sense a purchaser in good faith.
Finally giving to the record the most favorable construction for the plaintiff, and it leads to the conclusion that the evidence was evenly balanced and hence that the result reached cannot be questioned. 2 Best’s Ev. (Wood’s ed.), 364, marg.; 2 Evans’ Poth., No. 16, §§ 2, 14: 1 Cow. & Hill’s Notes, 306; Bogert v. Morse, 1 Comst., 377; Heinemann v. Heard, 62 N. Y., 448; Smith v. First Nat. Bk. etc. 99 Mass., 605; Jackson v. Metropolitan Rw. Co., L. R. 2 C. P. Div., 125. We have no means of knowing, except by what appears, whether the proceedings in the probate court are subject to any radical defect.
As the question of damages was somewhat discussed, and the proceedings under the statute for the protection of occupying claimants were supposed to cause difficulties, a few words upon the exact question presented by the facts here may be pardoned.
He received $2,400. But as there were improvements upon the land, this value applied to both lot and improvements, and it did not by itself afford any criterion for getting their respective values. At the trial of the ¡ejectment in February, 1875, Mrs. Sterling recovered as for the naked lot; such recovery being for a part of the property on the basis of its true value at that time. The residue of the property represented by the value of all the improvements, including such as were on the lot when Kellogg deeded, was not recovered, but was left as it stood and as it was held under the Kellogg title. The loss, then, within the legal operation of Kellogg’s covenant, could not exceed the value of the naked lot at the date cf the covenant, and in view of the legal sense of the covenant, that could be ascertained by deducting a sum equal to the value borne by the improvements at its date, from the value of the whole, or $2,400. The amount left would be equal to the value borne by the naked lot at the proper time. This, of course, would involve an inquiry as to the value of the improvements at the time the covenant was made. If the plaintiff had prevailed it may be that it would have been needful to have deducted from the value of the naked lot enough to cover its use in common with him by his mother and sister from the time of the judgment in ejectment until his coming of age.
As the plaintiff failed to show any .breach of the covenant, and was not hindered from doing so by any error of the court, the judgment must be affirmed with costs.