Wight v. Roethlisberger

116 Mich. 241 | Mich. | 1898

Grant, C. J.

(after stating the facts). 1. The

first ground of the demurrer is that the ward of Roethlisberger is a necessary party. Where the interests of an infant are involved, he must be made a party, and a guardian ad litem appointed. It is unnecessary to cite authorities to sustain this proposition. But this bill does not show that the ward is interested. When the judgment roll is introduced, it may show that the ward has such interest as to require the interposition of a guardian ad litem to protect his interest. If it should then appear that such appointment is necessary, it will be. time for the court to take action.

2. It is urged that the suit is not planted against Wood-worth in his official capacity. The bill alleges that he has levied as sheriff, and this is sufficient. The fact that in the prayer for relief he is not described as sheriff does not determine that he is sued individually. All the allegations must be considered.

3. It is next urged that the bill does not show affirmatively that more than $100 is involved. We think it fair to assume that 44 lots in the city of Grand Rapids are worth more than $100. This question must be determined by the value of the lots, and not by the amount of the judgment in the suit at law. Fuller v. City of Grand Rapids, 40 Mich. 395. Where the jurisdiction depended on the amount of the interest involved, and there was no allegation of the value of such interest, the court refused to dismiss the bill on general demurrer, and said, “We will not assume that a debt to secure which the debtor turned out 1,500 tons of No. 1 iron ore was not over $100.” Glidden v. Norvell, 44 Mich. 206. If, however, the lands were not worth $100, still it does not follow that a 'bill will not lie to prevent the unlawful interference with the owner’s enjoyment. The contrary view seems to have been taken by the court in White v. Forbes, Walk. Ch. 112. Upon this question we express no opinion at the present stage of the controversy.

4. It is insisted the bill is multifarious, because it prays for the removal of a cloud from title, and for damages. The point is that the right to maintain a bill to remove a cloud from title is statutory, and the statute does not authorize the assessment of damages in such a suit. Complainants, then, have prayed for relief to which they are not entitled. They would be, in that case, entitled to such relief as is consistent with the case stated. Hammond v. Michigan State Bank, Walk. Ch. 214; Varick v. Smith, 5 Paige, Ch. 137. See, also, 15 Am. & Eng. Enc. Law, 947.

5. We think that Mrs. Wight is a proper party, and that the tenant in common with complainants is not a necessary party. His interest is not affected, and no levy is made upon it. There is no injury to the common estate.

6. Defendants claim that the object of complainant Wight in taking title to this land in himself and wife was to defraud his creditors. There is nothing upon the face ■of the bill to show any such purpose. It does not appear that Mr. Wight was at that time indebted to defendant Roethlisberger or his ward, whoever he may be. Defendants can only take advantage of this by proper suit to establish the fraud and secure relief. Whether this can be done by an answer in this suit is not before us. We only hold that there is nothing now before the court to justify this conclusion.

Decree affirmed, with costs, and case remanded for defendants to plead or answer according to the rules and practice of the court.

The other Justices concurred.