98 Mich. 564 | Mich. | 1894
This is an action of ejectment. The plaintiffs claim title as heirs at law of Chloe Dryer, deceased, who was during her lifetime the wife of George W. Dryer. Chloe Dryer died without issue February 25, 1871, leaving, as heirs at law, Ellen R. Andrews and Mary J. Mallory, daughters of a deceased sister, and Maria S. Pattison, a sister. The plaintiffs Albert S. Pattison, Ruth D. Smith, Ada M. Gunnison, and Helen M. Gibson are descendants of Mrs. Pattison, who died intestate in October, 1877. The defendant George W. Dryer, and his wife,
“When he [plaintiff] claims as heir or devisee of one who died seis'ed, his right shall be deemed to have accrued at the time of such death, unless there is a tenancy by curtesy or other estate intervening after the death of such ancestor or devisor, in which case his right shall be deemed to accrue when such intermediate estate shall expire, or when it would have expired by its own limitation.”
The plaintiffs’ contention is that, the property in question having vested in Chloe Dryer prior to the married woman’s act, defendant became vested with an estate in the land known as “tenancy by the marital right,” and that having lawfully come into possession by virtue of this right, and having held over after the termination of his estate, he became a tenant at sufferance. On the part of defendant, it is contended that his holding over has not been, at
As a general rule, when a tenant comes rightfully into possession of land by permission of the owner, and continues to occupy the same after the time for which, by such permission, he had the right to hold the same, he is said to. be a tenant at sufferance. He holds without right, yet is not a trespasser. See 1 Washb. Real Prop. p. 392, and. Kunzie v. Wixom, 39 Mich. 387. This is conceded by defendant to be a correct statement of the rule, as applied to tenancies or estates created by contract between the parties; but it is said that “a distinction exists between such cases and those like the present, where the estáte is cast upon one by operation of law.” In Kent’s Commentaries (volume 4, p. 117), the learned author gives sanction to this distinction, as follows:
“There is a material distinction between the cases of a person coming to an estate by act of' the party, and after-wards holding over, and by act of the law, and then holding over. In the first case he is regarded as a tenant at sufferance, and in the other as an intruder, abator, or trespasser.”
So, in Washburn on Real Property (volume 1, p. 393), it is said:
“But, in order to have a tenancy grow into one by sufferance, it must originally have been created by agreement of the parties; for where one was in, like a guardian, by act of the law, and held after his ward arrived at age, he was a tort feasor, intruder, abator, or trespasser, and not a tenant at sufferance.”
In Angelí on Limitations (section 443), it is said:
“ If the lessee for life or years makes a feoffment, the lessor may still distrain for the rent, or charge the person to whom it is paid as a receiver, or bring an ejectment, and choose whether he will consider himself as disseised. This rule is to be applied, however, only to the conven*567 tional relation of landlord and tenant, where rent is reserved, or a return required, and not to a relation arising from mere operation of law, as where one makes a grant, and by the omission of the technical word ‘heirs’ an estate for life, only, passes. In such a case, after -the death of tenant for life, it is held that an adverse possession may commence;” citing Jackson v. Harsen, 7 Cow. 323, which fully sustains the text.
In Doe v. Gregory, 2 Adol. & E. 14, Vale and his wife entered into possession of lands by the right of the wife, Vale being a tenant in the marital right. The wife died. Vale continued in possession for 20 years. Ejectment was brought. The court say:
“It was argued that the defendant here was also to be considered as having entered rightfully, and committed no disseisin. We are, however, of opinion that, though this may be so for the purpose of avoiding a fine, it cannot prevent the defendant’s possession from being wrongful from the very hour when his interest expired by his wife’s death. It is clear that he might have been immediately turned out by ejectment. We think, therefore, that his' continuing the same possession for 20 years entitles him to the protection of the statute of limitations, and that this action has been brought too. late.”
It will be observed that the distinction between a tenant by operation of law holding over and one holding over who is in by contract is not made. It may, nevertheless, have been considered. In 2 Smith, Lead. Cas. (8th ed.) 664, comparison is made of this decision with other holdings of. the English courts, and it is said:
“ It is not, however, necessary to impugn the decision in Doe v. Gregory, since Lord Coke’s Commentary proceeds, ubi supra [1 Co. Lit. 575]: ‘There is a diversity between particular estates created by the tenant, and particular-estates created by act in law; as, if a guardian, after the full age of heiré, continueth in possession, he is no tenant at sufferance, but an. abator, against whom an assize of mort d’ancestor doth lye, et sic de similibus.’ And Lord Hale adds: ‘If guardian, in such case, die seised, the entry of the heir tolls.’ So that, on this distinction, it may be-*568 argued that the wife’s estate, in Doe v. Gregory, having been cast upon the husband, Yale, by act of law, his continuance in possession was not as tenant at sufferance, but as an intruder against the remainder-man, in which case he wou'ld have acquired a tortious freehold, and Stat. 21 Jac. I, would clearly run.”
In Livingston v. Tanner, 14 N. Y. 64, 69, it was said:
“In respect to the two other cases mentioned in the section, — that of a guardian or trustee holding for an infant, and a husband seised in right of his wife only, — neither of these persons, holding over after the determination of their respective estates, became tenants at sufferance, at common law. They were mere intruders, abators, and trespassers. At common law, there was a material distinction between the cases of a person coming to an estate by act of the party, and afterwards holding over, and by act of the law, and then holding over. In the first case, which included an estate determinable upon any life or lives, he was regarded as a tenant at .sufferance. In the other, to which belong guardians or trustees holding for infants, and husbands seised in right of their wives only, they were trespassers, and the relation of landlord and tenant never, in any sense, existed.”
In Brown v. Smith, 83 Ill. 291, it was held that upon the dissolution of the marriage relation the wife does not become a tenant at sufferance, as to property occupied by her during a continuance of the relation. It is said:
“ As the wife of appellant, she had undoubtedly a right to use all the apartments in the house, in virtue, alone, of ■marriage relation. When that ceased by the decree of the .court, her rights to any and all portions of the house 'Ceased. * * * She was not a tenant on sufferance, but an intruder, from and after April 16, 1872, the day the divorce was granted.”
While we have been cited to numerous cases and textbooks in which the definition of a “tenant at sufferance” is broad enough to include any person who, being lawfully put in possession of property, holds over after the termination of the estate, we have had our attention called to
The judgment will be reversed, with costs, and a new trial ordered.
