212 Mich. 223 | Mich. | 1920
On December 1, 1914, Albert Eastman entered into a land contract to sell and convey two lots in the city of Detroit to Albert Gundick and Martha, his wife, for a consideration of $2,600. On April 18, 1919, a decree of divorce dissolving their marriage was granted. In this decree each of the parties was awarded an undivided one-half interest in the equity they had under the land contract in the two lots. This decree was supplemented by another, made on May 12, 1919, which awarded the entire interest under the Eastman contract to Albert on condition that he should pay to Martha the sum of $555. This amended decree was vacated by this court in Gundick v. Gundick, 208 Mich. 34, except in so far as it corrected the description of the premises in the
Pending the decision on appeal, the plaintiff, acting through her brother-in-law, Charles C. Stewart, procured an assignment from Albert Gundick of his interest in the Eastman contract, subject to the payment to be made to Martha under the amended decree, paying therefor $555, and on June 13,1919, Eastman conveyed the lots to plaintiff by warranty deed, subject to the land contract executed by him to Albert and Martha Gundick, upon which there was then stated to be due the sum of $1,700.
It further appears that the intervener, Edward E. Hill, who was a dealer in real estate, being informed that the property was for sale, entered into negotiations with one Anna Manderano for its purchase by her and procured a check from her for $100 as a down payment. This check was delivered by Hill to Mr. Gottman, who was attorney for Albert in the divorce proceedings, who held it a few days. Immediately after the signing of the amended decree, Gottman informed Hill that he would give him four or five days to sell the property and, Mrs. Manderano being absent from the city, Mr. Hill procured William Sherman Lyster to purchase it and delivered to Gottman a certified check from Lyster for $1,200, which check Gottman deposited in the bank to the credit of his personal account. This money was afterwards returned to Lyster.
There was a dwelling house on the lots, of which Martha had retained possession. The plaintiff deposited with the clerk of the court a check for $555, payable to the order of Martha, in compliance with the terms of the amended decree, and demanded pos-session. This was refused by Martha, and on application to the court a writ of assistance was granted
Pending the hearing, the attention of the trial court was called to the fact that Hill had secured such quitclaim deed and the attorney for Martha Gundick asked that he be made a party defendant. Later, Mr. Hill, when on the stand as a witness, requested that he be permitted to intervene. A petition therefor was presented by his attorneys and an order for intervention made, whereupon he filed an answer and cross-bill. In the latter he charged that the assignment from Albert to plaintiff was procured by fraud and collusion, that under his quitclaim deed he was the owner of Albert’s interest, and asked for a decree accordingly.
“If the title be an equitable one, or partly equitable and partly legal (Overton v. Woolfolk, 6 Dana, 371), the court of equity may very properly try the titles, and so probably when the title is of a purely legal character, but some obstacle exists to a fair and perfect trial at law.”
Irrespective of whether the facts in this case bring it within the exception, we are of the opinion that this question cannot now be raised by either of the defendants. Martha Gundick makes no claim to other than an undivided one-half interest and is in no way interested in the dispute between plaintiff and Hill.- The plaintiff, by virtue of her deed from Eastman and the assignment from Albert of his interest in the land contract, is the owner of the other one-half, unless her right thereto bé affected by the quitclaim deed from Albert to Hill. The only interest Hill could have was the right to be permitted to pay up the amount due by Albert under the contract and thus secure from plaintiff a deed to a one-half interest. He owned no title to any part of this land which could be made the subject of a suit at law. After he secured his quitclaim deed, he might have taken proceedings in equity
“In an action either at law, or in equity, any one claiming an interest in the litigation may, at any time, be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding.”
- Having submitted himself and his interest in this property to the jurisdiction of the court by his intervention, which is declared by the statute to be “in subordination to, and in recognition of, the propriety of the main proceeding,” in which partition was the only relief sought, we do not think he could thereafter question, the right of the court to determine his interest and, when it was determined that he had none, to grant the decree for partition as between plaintiff and Martha Gundick.
“In the absence of statute or agreement to the contrary, a tenant in common, while merely in possession of the common property, not excluding his cotenants, nor denying them equal enjoyment, cannot be charged with rent for use and occupation. * * * If the nature of the property be such as not to admit of its use and occupation by more than one, and it is occupied by one of the tenants in common only; or if, although capable of occupation by more than one, it is yet so used and occupied as in effect to exclude the*230 others, he so occupying will be held accountable to the others for the rents and profits.”
This is, in effect, the rule laid down by this court in Hunt v. Hunt, 109 Mich. 399, and followed in Fenton v. Miller, 116 Mich. 45 (72 Am. St. Rep. 502). See, also, Schultz v. Dennison, 159 Mich. 259 (25 L. R. A. [N. S.] 1249), wherein it is said:
“It is competent in partition proceedings to adjust the equities of the parties in the decree.”
We think the provision of the decree relative to rents was fully justified by the proofs.
We have given consideration to the other questions discussed by counsel. In our opinion, they are in no way controlling. The decree is affirmed, with costs to plaintiff against both defendants.