193 Mich. 640 | Mich. | 1916
These cases were heard and considered together, the evidence applying to both cases, in so far as applicable. The bills of complaint were filed to remove clouds upon the title of the plaintiff in and to the east half of the southeast quarter of section 16, in the township of Bridgewater, Washtenaw county.
It appears undisputed that, in 1876, George Schmidt, the father of the plaintiff, died intestate, owning the above-described premises, constituting his farm, and leaving a widow, a daughter, and his two sons, George A. Schmidt, who is the plaintiff in these cases, and his brother, Henry W. Schmidt, as his heirs at law. Administration was delayed for a time, and it was some 5 years after Mr. Schmidt’s death when it was had, and, in 1885, the estate was closed and the property decreed by the probate court to the said three children, subject to the dower interest of the widow. It is the claim of the plaintiff that in 1892, about the time he became 21 years of age (his brother, Henry, being some 7 years older) the children and mother all met together at the farm, and it was then and there verbally agreed between Henry and the plaintiff that Henry should surrender and grant to the plaintiff all of his interest as heir at law of their father in said farm, upon the terms and conditions that the plaintiff should enter upon the farm, put it in proper condition, work the same (it being the claim of the plaintiff that it was then considerably dilapidated and fun down), and take care of the mother and sister during their respective lives, and that he, the plaintiff, should have
“I am still of the opinion that the alleged surrender of the interest of the • brother to the complainant, whether intentional or otherwise, operated as a secret trust, and as to the creditors of Henry W. Schmidt was fraudulent”
—and dismissed the bills of complaint. The plaintiff has appealed.
We have examined the Phillpotts Case with a great deal of care, and are of the opinion that it is not controlling in these cases. No question of possession entered into the consideration of the Phillpotts Case. Here it is undisputed that the plaintiff has, at all times since 1892, been in possession of the premises, and has been proceeding to carry out the contract made with his brother, and we have no doubt that, when that contract is fully performed by him, if it ever is, it will be in the power of a court of chancery to compel the specific performance of said agreement, thus taking the cases out of the statute of frauds.
It is equally true that the legal title of the undivided one-third part of said premises, subject to the widow’s right of dower, is still in Henry, and that such legal title is subject to levy by execution. The plaintiff is at present in no condition to file a bill for specific
““the lien thus obtained, shall, from the filing of said .notice, be valid against all prior grantees and [mortgagees] mortgages of whose claims the party interested shall not have actual nor constructive notice.”
The purpose of the amendment of our statute in 1889 (Pub. Acts 1889, Act No. 227) was to change the rule which had previously existed, and to give a levy under an execution the same priority accorded to a conveyance duly recorded. Campbell v. Keys, 130 Mich. 127 (89 N. W. 720); First National Bank v. State Savings Bank, 130 Mich. 332 (89 N. W. 941); Gardner v. Mason, 130 Mich. 436 (90 N. W. 28).
Much stress is laid by plaintiff’s counsel upon the fact that the plaintiff was in the actual possession of the lands in question at the time the levies of execution were made. Many cases are cited, including the following: McKee v. Wilcox, 11 Mich. 358 (83 Am. Dec. 743); Woodward v. Clark, 15 Mich. 104-112; Converse v. Blumrich, 14 Mich. 109-120 (90 Am. Dec. 230); Russell v. Sweezey, 22 Mich. 235-239; Dunks
In the case of Weisberger v. Wisner, supra, the question involved the rights of a tenant in common. In that case Wisner, in addition to the deeds which made him legal owner of an undivided three-fourths of the premises involved, had a contract which was perfectly legal and binding, and under which he was to become entitled, when he made certain payments, to a deed of the other one-fourth. With the record in that condition, Chief Justice Cooley, in that case, said:
“If Wisner had held a deed of the remaining interest in the land which then appeared to stand in Muzzy, we see no reason why his possession should not have been constructive notice of it. It is true, as complainant says, that the possession was not apparently inconsistent with the record title; but this may be said in any ease. It is possible that any possession may be that of a licensee or otherwise subordinate to the record title; and if that were sufficient reason for holding that the possession is no notice of actual rights, the principle on which decisions have been*646 made, giving protection to occupants, would have very limited application.
“If Wisner had held no deed of an interest in the land, but had been in possession under a contract of purchase, the possession would indisputably have been notice of his rights. Why it should be any less so when his title has been in part completed by conveyances is not apparent. The conveyances, one would think, ought to fortify and strengthen his equities, instead of weakening and putting them in danger. It seems to be unquestionable that Wisner occupied exclusively, and White would have learned this fact on inquiry. No reason is apparent why he should not have been held bound to inquire, as much in this case as in any other. See Hardy v. Summers, 10 Gill & J. (Md.) 316 (32 Am. Dec. 167), in which, upon similar facts, the possession was held to give notice.”
This case was cited in Corey v. Smalley, supra. See, also, 27 Cyc. p. 1189 and 38 Cyc. p. 74, where it is said:
“It has been held that the possession of a cotenant is ordinarily notice to a purchaser of the whole interest that such cotenant may . have in the estate,” citing English cases.
We think that the weight of authority is in favor of the proposition that the actual possession or occupancy of land by a tenant in common is sufficient to put another upon inquiry, and that such other is chargeable with a knowledge of all the facts which he might have learned by making such inquiry of the party in possession. However, the plaintiff is not entitled to relief under his bills of complaint in any view of the subject, because the legal title to this land stood, at the time of the levies, in Henry, and such title was liable to levy upon execution, subject to the rights of the plaintiff who was in possession, but any sale of Henry’s legal title must be held to be in subordination to the rights of the plaintiff under his contract in said land; and the rights of the plain
Notwithstanding the quitclaim deed of Henry and wife to the plaintiff, made after the levies, the position and standing of the plaintiff in these suits, relating to Henry’s interest in the farm, are no better than they were when the levies were made, and are the same as though Henry had deeded to the defendants at the time of the respective levies. Such deeds, had they been made, would have been subject to the plaintiff’s equities, whatever they were.
The bills of complaint must therefore be dismissed, but without prejudice to the rights of the plaintiff to protect his possession and occupancy of the premises until such time as his equitable interest or title shall entitle him to specific performance of the said contract. The bills of complaint will therefore be dismissed, and the decrees below affirmed, with costs to the defendants.