145 Mich. 219 | Mich. | 1906
This is an action of ejectment brought September 8, 1905, by a widow for her unassigned right of dower in the undivided half of certain property in Oxford, Oakland county, Mich. At some time prior to February 21, 1877, Nelson Green was the owner in fee simple of a hotel building and grounds in Oxford, known as the “Commercial Hotel Property,” and he had conveyed the property to James R. Sutherland by a deed recorded on that date. Sutherland gave Green a purchase-money mortgage for $8,700 on the property, payable in 10 annual installments from date, and this mortgage was recorded December 27, 1876. Sutherland sold off two pieces from the property and secured a release of the mortgage, so far as it affected these pieces, and paid $500 on the principal of the mortgage. Kile and wife, on May 2, 1878, conveyed the property by a warranty deed to Daniel Rams-dell and Frank J. Putney. The consideration was $4,000. The conveyance was made subject to the mortgage, although the grantees did not assume it. Daniel Ramsdell was the father-in-law of Frank J. Putney. Clara Putney, the plaintiff, was his daughter, and is the widow of Putney. Ramsdell and Putney took possession of the hotel early in 1878. In March, 1879, Frank J. Putney and the plaintiff moved to Conneaut, Ohio, leaving Ramsdell in possession of the property. While he was in possession in the winter of 1882 and 1883 the hotel burned. It was insured, and the policy was assigned by Ramsdell to one of his creditors. The check for the loss was made payable to Ramsdell and the creditor jointly. The insurance covered also the personal property in the hotel, but whether it covered more than RamsdelPs undivided half of the building does not' appear. Later defendant Vinton en
The defendants, under the provisions of sections 10995 and' 10996, 3 Comp. Laws, filed a claim in writing for compensation for buildings and improvements erected by them or their grantors, and asked a finding of the increased value of the property by reason of such improvements. Plaintiff thereupon filed a request under the same statute for a finding of what would have been the value of the property, if no such improvements had been made. On the trial defendants presented to the court three reasons why plaintiff’s right to recover on the face of the title should be denied:
1. Defendants claimed that the title of Frank J. Putney had become extinguished by adverse possession at the time of his death in 1897.
2. That the Green mortgage must be taken into consideration, in this case to so reduce plaintiff’s dower right as to utterly destroy it.
3. That plaintiff, being a nonresident, was only dowered of property of which her husband died seised, under section 8938, 3 Comp. Laws, and that Frank J. Putney did not die seised of the property in question in this case.
The trial court was of the opinion that the second reason was controlling, and, as the mortgage was three or four times larger than the value of the property, that there was no dower right left to the widow under Snyder v. Snyder, 6 Mich. 470, and directed a verdict in favor of defendants.
We now turn to the first contention of counsel for defendants that plaintiff’s husband at the time of his death had lost his title by adverse possession and therefore ■plaintiff’s dower right was also extinguished. It is •claimed by counsel for plaintiff that—
“ ‘ It is a principle universally admitted, that the husband .cannot deprive her [the wife] of it [her dower right], and that she can only be divested by authority of the State, or by or in consequence •of her own voluntary act.’ Greiner v. Klein, 28 Mich. 12, 17.
“ Accordingly it has always been held that adverse possession against the husband, however long continued*224 during his lifetime, does not affect the wife’s right of dower, because she had no authority or power to prevent, the husband’s laches.” Citing a great many cases.
Counsel further say:
“ But does this principle apply where the wife is a nonresident and therefore under the peculiar language of our statute is only dowered of lands of which the husband dies seised? Section 8938, 3 Comp. Laws; Pratt v. Tefft, 14 Mich. 191; Ligare v. Semple, 32 Mich. 438. In the cases last cited the husband was disseised by his deed, and we confess we cannot well distinguish them from a. case where the husband was disseised by adverse possession sufficiently long continued. In one case, the wife loses her dower right by the deed of her husband over which she had no control, and in the other case she loses her dower right by his laches over.which she equally had no control.”
In the cases cited the husband had, by deed, conveyed his interest in the land, but the important points of the decisions are in construing the statute to mean that unless the husband died seised of the land the widow had no right of dower. If his title had been ended because some one had acquired it by adverse possession, he was just as much deprived of his seisin in the land as though he had. deeded it. We think the cases are alike in principle. But it is said there is no testimony of an adverse holding for so long a time as to ripen into title. We think there was some testimony bearing upon that question, and there may be more upon another trial. Inasmuch as the trial judge held with plaintiff in that respect, we have doubtless said all we need to upon that subject.
We now come to the third question. Is counsel right in saying that because plaintiff and her husband were nonresidents at the time of his death she is entitled to dower only in lands of which he was in the possession ? Counsel argue that, as by the terms of section 8918, 3 Comp. Laws, a resident widow is entitled to dower “ in all lands where her husband was seised of an estate of inheritance,” while a widow who is an alien is, by the terms of section
Judgment is reversed, and new trial ordered.