200 Mich. 236 | Mich. | 1918
(after stating the facts). Assuming that the learned circuit judge was correct in holding that the second will was in fact the last will and testament of David J. Young, and likewise assuming that equity has jurisdiction in the premises (In re Butts Estate, 173 Mich. 504, and cases cited), there yet remain several reasons in our opinion why plaintiff cannot succeed in this action. His second prayer for relief is:
“That the will of November 18, 1891, and all orders and proceedings based thereon, be set aside and held for naught insofar as so doing will not disturb any title based thereupon.”
In other words, he prays that the- first will, which was admitted to probate, may be considered as the last Will and testament of David J. Young for the purpose of making a good title to the 220 acres of land which
“In the instant case the defendants, who are trying to contradict the terms of the deed in this respect are claiming an undivided half interest in the lots by force of the same deed. They do not accept the instrument as a whole. They accept what is favorable. This is just what the Jacobs Case holds they-ought not to be permitted to do.” Jacobs v. Miller, 50 Mich. 119.
See, also, Stone v. Cook, 179 Mo. 534, where the rule is announced:
“A person cannot accept and reject the same instrument, pr, having availed himself of it.as to part, defeat its provisions in any other part; and this applies to deeds, wills, and all other instruments whatever. [Citing authorities.] This doctrine of election, which prevents the assertion of repugnant rights,'is but an extension of the law of equitable estoppel.”
In connection with the application of this rule to the case at bar, it must be noticed that plaintiff himself, on March 16,1915, more than two years after the discovery of the alleged second will, deeded a portion of the-146 acres with full covenants of warranty, basing his right to make such conveyances upon the first will and the probate thereof.
“Section 1. Hereafter no person shall bring or maintain any action for the recovery of any lands, or the possession thereof, or make any entry thereupon, unless such action is commenced or entry made within the time herein limited therefor, after the right to make such entry or to bring such action shall have first accrued to the plaintiff, or to some person through whom he claims; * * * or through a devise in any will which shall have been probated in this State for fifteen years, during which period no suit in chancery has been brought to test the validity of such devise : Provided, That in cases where such fifteen-year period has already elapsed such rights of entry or actions shall be barred after two years from the passage hereof, or in case such right has not accrued, then after two years from the accruing thereof.”
This legislation first appears upon the statute books in its present form as Act No. 243, Pub. Acts 1911. With reference to this, statute, counsel for appellant say:
“It is apparent that this statute applies only to suits brought to compel a reconveyance or entry upon lands. The plaintiff in this case is not asking for a reconveyance of the land or attempting in any way to make an entry thereon or to affect anybody’s title. Technically, it might be said that our bill is divided into two parts: first, to have the last will established, and second, to recover from Mrs. Young the portion of the money we are entitled to by reason of the devise contained in the last will.”
We are of the opinion that this position is not tenable. It is apparent that the $11,000 for which the defendant, Ella O. Young, sold the land stands in place of the land itself, and we think that the statute which clearly bars recovery of the land should also bar recovery of the fund which was received upon its sale. Plaintiff himself had it within his power to avoid the
Plaintiff in this suit seeks to recover a portion of the purchase price paid to Ella O. Young for the farm in question by a third party. There is no privity between plaintiff and defendant in respect to the cause of action. Assume that defendant had sold the farm to a stranger and that her vendee was now in possession thereof, upon establishing his rights to the reversion in said farm, plaintiff would have a right to proceed against the vendee upon the termination of the life estate. That plaintiff is precluded from taking this course by reason of his own acts in dealing with the title in reliance upon the first will, affords no argument for the propriety of his present claims. In addition to the reasons assigned by the learned circuit judge we are of opinion that the plaintiff’s bill might properly have been dismissed upon any of the grounds above set forth.
The decree is affirmed.