author: Cooley J. Campbell J.

text:
    Allen v. Carpenter.

      Tenancy: Notice to quit: Under what circumstances a person holding over after foreclosure of a mortgage of the premises, will he entitled to notice to quit, Quaere, the Court being equally divided.
    Discussion of the extent to which irregularities and errors in summary proceedings for possession of land render the proceedings void, and inadmissible as evidence.

      Heard July 10th.

      Decided November 8th.
    Error to Lenawee County Circuit.
    This was an action of trespass quare clausum, for entering upon the premises of plaintiff and removing certain crops and committing certain other injuries.
    Defendant plead the general issue, and gave notice of special matter.
    The cauáe was tried by a jury, and a verdict rendered for defendant.
    The plaintiff removed the same by writ of error.
    The facts are stated in the opinion.

      A. L. Millerd, E. H. C. Wilson and A. F. Bixby, for plaintiff.
    1. The Court below erred in ruling out the evidence of the proceedings before the Circuit Court Commissioner, Hogaboam.
    The appearance of the defendant, and pleading and going to trial -on the merits, waived any objection to the complaint on account of the mistake, in the date of the ■jurat, and the other objections taken thereto.
    And even if the proceedings should turn out , to, be technically irregular, it was competent for the plaintiff to show that he took such proceedings, in good faith, to obtain what was lawfully his own, and which the defendant was wrongfully withholding from him. The proceeding's, even if irregular, were equivalent to a demand of the possession. They were notice to the defendant that his remaining was against the will of the plaintiff, and his resistance to them was equivalent to a refusal to yield the possession.
    The fact that the plaintiff commenced such a proceeding in 1863, and prosecuted it until he was stopped by the injunction, and then commenced again as soon as the injunction was removed, effectually negatived the idea, and rebutted any presumption that Prior’s remaining there and putting in the crops in question was with the assent or tacit permission of the plaintiff.
    2. The Court erred in receiving evidence that Prior did not know of the foreclosure of the mortgage until after the plaintiff purchased the farm.
    This was wholly immaterial.
    3. Prior did not acquire a tenancy, either at will or by sufferance, by the omission of Clark, after the foreclosure of his mortgage, to take immediate steps to dispossess him, and the charge on that point was erroneous. *
    He or his assignee was entitled to take the proceedings at any time after the time of redemption expired, without further notice, unless he had done something or said something that should amount to a consent for the mortgagee to remain, or to put in crops. No such consent could be implied from his mere omission to take immediate steps to obtain possession.
    If such consent could be implied from the fact of his standing by and allowing the mortgagor to put in crops without objection, knowing that he was doing so, it certainly could not without proof of knowledge on his part. There was no such proof, and if there had been any tending to show it, or from which it might be inferred, it should have been submitted to the jury.
    The mortgagee is entitled, as against the mortgagor or his lessee, to the crops growing on the premises at the time of the foreclosure, and may maintain trespass against him for taking them away. — 8 Wend. 58; 1 Leigh, '297; 14 Pieh. 238; 2 Lenio. 174.
    If he is entitled to the crop put in by the mortgagor before the foreclosure and while the latter is in rightful possession, certainly he is no less entitled to a crop put in after the foreclosure is complete, and while he is kept out of possession wrongfully by the mortgagor.
    A mortgagor is not entitled to notice to quit, nor to emblements. — 1 Hill, on Mortgages, 120; 4 Goto. 266.
    The statute gives a mortgagee this remedy by summary proceeding to recover possession against a mortgagor holding over. — 2 G. Lj. § 4985.
    A mortgagee who purchases under a foreclosure sale may treat the mortgagor who holds over, either as a tenant or a trespasser, at his option. — 2 B. Monr. 158; 1 Hill, on Mortgages, 126.
    The notice of sale on the foreclosure was equivalent to three months notice to quit.— 17 Johns. 300; 4 Cow. 266, 279.
    And a delay to take these proceedings, though it were much longer than in this case, would not be á waiver of the notice. —2 Goto. 547.

      No tenancy can arise by implication, under a party who has not the legal estate. — Taylor’s land, and Ten. §25; 2 Man. & By. 303.
    Prior’s possession has been adverse to Clark and his assignee, ever since Clark’s title accrued. He has all the time disputed and contested the right of the latter, and himself claimed the ownership. This estops him from claiming, now, that he was in as a tenant to Clark, being utterly inconsistent with such a claim. — 3 Johns. 422.
    The possession of the plaintiff was rightful, whether the summary proceedings by which he obtained it were technically regular or not. He was legally entitled to the possession of the farm and of the crops growing on it, and having obtained it, he was entitled to retain the same, and to maintain trespass against any one not having a superior right, that should enter and disturb his possession.
    This would be so even if he had entered forcibly, and under such circumstances as would render him criminally liable for a breach of the peace. — 36 Maine, 436.

      C. A. Stacy, and A. Howell, for defendants.
    The plaintiff claims right to possession, and power to evict under the proceedings before the Commissioner. We claim those proceedings are void because,
    I. There was no complaint, such as is required by the statute. The jurisdiction of the Commissioner depends absolutely upon a complaint being made as required by law, on oath, setting forth certain particulars — and being delivered to the officer. — 2 G. I. 1324, § 12, 1325, §13 and 14.

      a. Here the complaint showed that on the 29th of September, 1861, certain facts existed, on which they asked process in 1864. —10 Mich. 229, 235 ; 4 Id, 339.

      b. The statute contemplates that the complaint and oath shall be made by the same person — see § 13 — either by the party or attorney or agent.

      In this case the complaint is made by Allen, the oath by Bixby— and the oath is only to his belief, though he swears that he is fully acquainted with the truth of the facts stated in the complaint.
    2. But even if the complaint and summons are good under the statute, still the judgment is bad because it only finds the possession of Prior and his unlawful holding over against the just rights of the complainant, and does not find that the complainant was entitled to the possession of the premises. — See cases above cited.

    If these proceedings were properly ruled out, if in fact there had been no proper foreclosure, then it follows that the plaintiff had no right to the possession of the lands, but was in possession by force, and therefore as a wrong doer. —23 Vt. 630, 646.
    The statute in Vermont is like ours, and the principles of this- decision applies to our statute.
    3. But we contend that even if the foreclosure is valid, and the proceedings before the Circuit Court Commissioner good, and the judgment a legal one, which authorized the issuing of the writ of possession, still the defendant Prior was entitled to possession until he received three months’ notice to quit, because,

      a. Estates at will or at sufferance can only be determined by three months’ notice. — 2 G. L. p. 857, § 34; 17 Mass. 282, 287 ;"1 Pick. 43; 2 Gray, 226, 336 ; 2 Id. 70; 6 Id. 339.
    5. By our statute, estates for years seem to have been abolished. — 2 G. I., 818, §1.

      c. At common law it was held that so long as the mortgagor remained in possession with the acquiescence of the mortgagee, and without any covenant for the purpose, he was a tenant at will. — 4 Uentfs Com. 155, 156 ; 5 Barn, and Aid. 604; 1 Term B. 383 ; 2 Doug. Mich. 377.

      d. In New York, notice to quit is necessary. — 2 Johns. 76 ; 4 Id. 215 ; 18 Id, 487.

      e. After the time of redemption has expired, the mortgagor remains lawfully in possession as tenant at will or by sufferance, against the mortgagee who permits him to remain without objection.
    This was the case beforé redemption, before the passage of the act of 1843, prohibiting actions of ejectment before foreclosure and the expiration of the time of redemption. The legal rights of the mortgagor is the same in both cases.
    His equitable rights before foreclosure and redemption entitled him to redeem. — 1 Mich. JR. 68.
    His position, then, after expiration of time of redemption, was that of tenant at will, modified, of course, by the provisions of the statute. — 2 C. JO. p. 1324, §12, Clause 3; Id. 1365, § 10.
    The advertisement and filing of the papers in Register’s office were only constructive notices so as to bar redemption.— 2 C. I. Chap. 151...
    There was no actual notice of the foreclosure. The testimony shows that Prior had no notice until after the sale from Clark to Allen.
    Prior’, then, after March 22d, 1863 — the date of the expiration of the time of redemption — remained in possession lawfully, and not as a wrong doer, when Clark, knowing the fact of the foreclosure and expiration of the time of redemption allowed Prior, ignorant of both, to go on and put in crops, and continue to occupy the premises. He put him in the position of a tenant at will, or at least tenant by sufferance, and he was entitled to notice to quit by the terms of the statute.
   Cooley J.

The facts in this case are briefly the following:

One Clark being the owner of a mortgage given by Henry Prior on a farm owned by the latter, took proceedings for its foreclosure under the power of sale, and caused the premises to be struck off to himself for the amount of the mortgage and costs.' The time for redemption under the foreclosure expired March 22, 1863. Clark does not appear to have had any communication with Prior in regard to the foreclosure, either before or after the sale, and Prior testifies that he was not aware of the proceedings until the last of June or first of July, 1863. In the spring of that year he put in crops upon the farm as usual. On June 25, 1863, Clark, for a nominal consideration of about the foreclosure moneys and interest, conveyed the farm to Allen, who, within a few days thereafter^ demanded and endeavored to obtain possession, but his proceedings for that purpose were resisted by Prior on the ground of irregularity and fraud in the foreclosure. In this contest, Prior proved unsuccessful, and Allen obtained judgment for the possession of the land September 2, 1864, in proceedings before a Circuit Court Commissioner under Chapter 150 of the Compiled Laws. The defendants in this case, who were Prior’s neighbors, then turned out and assisted him to remove from the premises the crops which he had grown thereon, and which were ripened, and a part of them harvested at the date of the Commissioner’s judgment. For this assistance the present action was brought.

The questions which become material for us to consider upon this record, are: First, whether the proceedings before the Commissioner are conclusive upon Prior, -and determine for all collateral inquiries the right of Allen to possession of the land at the time those proceedings were commenced? and if not, and we are at liberty to go back of them, then Second, whether Prior, under the statute, was entitled to notice from Allen before he could be lawfully dispossessed by him?

1. The Circuit Judge held the proceedings before the Commissioner void for want of jurisdiction. It appears from the Commissioner’s record —which was put in evidence— that the proceedings were commenced August 29th, — in what year is not stated — and that they resulted in a judgment for the complainant September 2d, 1864. The complaint averred in the usual form that Allen was entitled to the possession of the premises, and that Prior held them unlawfully and against the right of complainant. It was not dated at all; but it was sworn to as required by the statute, and the jurat was dated August 29th, 1861. On its face, therefore, the complaint showed a right in Allen to the possession of the premises three years before the proceedings were commenced, but did not show or allege his right at any subsequent time.

There was a plea to this complaint, and it is argued that- this is a waiver of any errors. Jurisdiction over the person may be given by voluntary apjxearance and plea; but jurisdiction of the subject matter cannot be given by consent. Even in those cases where parties are authorized to appear and enter a voluntary confession of judgment, it has been several times held in this State that the proceedings were void if any of the statutory requisites wei’e omitted.— Clark v. Holmes, 1 Doug. 390; Beach v. Botsford, 1 Doug. 199; Spears v. Carter, 1 Mich. 19; Wilson v. Dams, 1 Mich. 156. But the present case is not one in which jurisdiction can be obtained by mere consent or confession, or in any other maimer except through the complaint which the statute px-escribes; and the fundamental rule, that the jurisdiction of special and limited tribunals must affirmatively appear on the face of the proceedings or they ax-e void — (Chandler v. Nash, 5 Mich. 409,) — has always been applied to these summary trials with great strictness. In the two cases of Bush v. Dunham, 4 Mich. 339, and Bryan v. Smith, 10 Mich. 229, the defect in the proceedings was precisely the same as in this case: a failure in the coxnplaint to show a right to possession in the plaintiff at the time it was presented to the Commissioner; and in both, the judgment was held void. In the case last named the complaint averred that the complainant became entitled to the possession of the premises at a time mentioned, -which was some fourteen months before the date of the complaint; but it was held that an express allegation of the existing right of the complainant could not be dispensed with. Under these decisions it seems to me impossible to sustain these proceedings, and that the appearance and plea of the defendant are immaterial. No consent of parties could vest the Commissioner with power to try the rights of the parties at any period' anterior to their commencement, as that would be as clearly beyond his statutory powers as the trial by consent of an action of ejectment.

It was suggested, however, in the Court below, that the date to the jurat was a mistake of 1861 for 1864; and the Circuit Judge at first admitted evidence to show this mistake. This evidence seems to me clearly inadmissible. A record must be its own interpreter — Rood v. School District, etc. 1 Doug. 502; and if it fails to show jurisdiction on its face, it is impossible to sustain it by proof of facts which rest in the recollection or intentions of witnesses. I say nothing now of any amendment or motion to amend; for here there was no attempt of the kind: the naked case was a record offered in evidence which failed to show jurisdiction, and an attempt to sustain it, not by correction, but by parol evidence of a mistake made in drafting it. If this can be done, it is evident that the validity of the record must depend upon the parol-proof; and this same proceeding might be held valid one day, and void the next, if the witness in the mean time had deceased, or his testimony for any other reason become unattainable. It seems to me very clear that such evidence is at war with the fundamental rules which govern the examination of judicial records; and that the Circuit Judge was right in his final conclusion.

2. The second question is of more general importance, and arises under §2807 of Compiled Laws, which provides that “All estates at will and at sufferance may be determined by either party, by three months’ notice given to the other party.” If Prior, at the time Allen acquired his right, was tenant either at will or at sufferance within the meaning of this statute, he was entitled to the notice specified, and he could not lawfully be deprived of the possession of the premises, or of the crops grown by him upon them, until such notice was given.

A tenant at sufferance is defined to be one who, having come into possession by right, holds over without right. Co. Lit. 51 b.; 2 Bl. Com. 150. A mortgagor whose estate has been terminated by foreclosure proceedings, is strictly within this definition. — Kinsley v. Ames, 2 Met. 31. At common law such a tenant was not entitled to notice, but the owner might enter at any time, and having regained possession, sue the tenant in trespass for his occupation. — Dorrell v. Johnson, 17 Pick. 266; Butcher v. Butcher, 1 B. & C. 399; Hey v. Moorehouse, 6 Bing. N. C. 52; Pearce v. Ferris, 10 N. Y. 283. The possession of the latter being wrongful, continues only by the 'latches of the owner, since, if assented to, the tenancy ceases to be one at sufferance, and becomes a tenancy at will or from year to year. — 1 Washb. on Real Pr. 394.

It is apparent that the term tenant at sufferance cannot be used in the statute in a sense which would entitle any one holding over wrongfully to the statutory notice, since that would put it in the power of any occupant to prolong a wrongful possession indefinitely. It may, therefore, be well to look at the decisions under similar statutes for aid in giving these words their proper construction.

In Kinsley v. Ames, 2 Met. 29, a mortgagor who had held over for a month after his right was terminated by foreclosure, before possession was demanded from him, was held not entitled to notice, on the ground that the statute which required notice to tenants at will and at sufferance had been so amended as to apply to tenants at will only. In Rowan v. Lytle, 11 Wend. 620, Savage Ch. J. in giving a construction to a similar statute says: “ For the purpose of giving this statute a fair construction and beneficial operation, no notice should be held necessary unless the landlord has unnecessarily delayed his proceedings; and the object of the. legislature will be best promoted by holding that such notice is not necessary unless the landlord has permitted the tenancy at sufferance to continue for such a length of time as to imply assent.” In that case a tenant for years who asserted some adverse right in himself had held over for two months during some negotiations for a new lease, and was then told he must either take the lease on his landlord’s terms or quit the premises. He did not do either, and proceedings were commenced against him six months later. It was held — and it seems to me correctly — that he was not entitled to notice.

The landlord could not fairly be chargeable with laches while the negotiations were pending, and the retention of possession after they had ceased was in the face of the landlord’s prohibition. In Livingston v. Tanner, 12 Barb. 481, a construction was placed upon the statute which seems to me to speak its real intent, and to accomplish the beneficial purpose for which it was enacted. There a tenant per autre vie had held over for nearly four months without, so far as appeared, any knowledge that his estate had terminated; and stress was laid upon this fact in holding him entitled to notice. The decision places the right to notice not upon the ground of the owner’s assent to the posession, but upon the circumstances existing " in the case which rendered it unjust that the tenant should be dispossessed as a wrong doer without warning, when he was not guilty of intentional wrong, and might not even be aware that he was not holding in his’ own right.

The case last mentioned was reversed by the Court of Appeals —14 N. Y. 64 — on the ground that another statute of that state had in express tertns, made one who held over after the determination of a life estate a trespasser; thereby changing what would otherwise he.a tenancy at sufferance into a trespass. The reasoning of the Supremo Court is not only left untouched by the court of last resort, but the Judge delivering the opinion of that court pointed out, very clearly, as I think, that but for the statute last mentioned notice would have been necessary. We have no corresponding statute in this state; nothing that assumes to change the common law relation of a mortgagor holding over after foreclosure perfected.

I think I am safe in saying, under the decisions and on general principles, that whenever the occupant continues to hold by the consent of the owner, he becomes entitled to notice as tenant at will; and that where the owner suffers him to remain in possession without objection, and to make such use of the premises as would render it unjust to demand and enforce possession against him without warning, this laches of the owner entitles him to the statutory notice as tenant at sufferance. There is no wrong and no. hardship in this to any one, and it seems to me to accomplish the purpose of the statute.

This construction does not appear to me to conflict at all with the statute which authorizes summary proceedings under chap. 150 of the Compiled Laws, to dispossess a mortgagor who holds over after the foreclosure has become absolute. There is nothing in that provision which warrants us in holding that the position of the mortgagor thus holding over by wrong can not be afterwards changed by the acts or omissions to act of the purchaser. Notwithstanding the statute, it seems very clear to me that if the mortgagor should continue to hold with the purchaser’s assent, he would become tenant at will and entitled to notice as such; and it seems equally clear that without actual assent, he may be suffered to remain in possession under such circumstances as would make the occupancy cease to. be wrongful. There is no doubt of the right of the purchaser to enforce possession under this statute; but to hold that that right continues indefinitely,. without regard to laches, or the implications that might arise from suffering the possession to continue, does not strike me as in harmony with the purposes of the statute. The provision for notice to tenants at will and at sufferance is general in its terms, and meant, I think, to include all cases where those relations exist, within the meaning of the statute, and without regard to the nature of the prior relation.

In the present case the truth of Prior’s statement, that he was entirely ignorant of the foreclosure proceedings until redemption had expired and Clark had deeded to Allen, is not disputed. That he was grossly negligent in thus failing to look after his interests is very clear, and he could not be allowed to set up his want of notice as a defense to the foreclosure. The statutory notice is conclusive upon him in any question of title. But different considerations present themselves when the question is made whether he shall be treated as a wrongdoer. Prior had in the mean time gone on to put in his spring crops, and this labor was fully completed before demand was made upon him for the land. While the law charges the mortgagor with notice of the foreclosure proceedings, and will not allow him to dispute it as a defense to the sale, it is no hardship to the purchaser to hold him constructively notified of the use which is being made of the land, by the expenditure of money and labor, after the sale has become absolute. If without objection he allows the occupant to go on and sow crops on the supposition that he is to be suffered to reap them, he must be held impliedly to assent to the cultivation ; or, at least, to be guilty of such laches as equitably to entitle the occupant to the statutory warning-before he can be dispossessed.

The precise question before us is this: Whether the purchaser at a mortgage sale, who for three months after his title has become absolute, has suffered the mortgagor to go on without objection in the planting of the land with crops, is entitled then to enforce possession without prior notice, and to reap the benefit of the mortgagor’s labor? I think this question must be answered in the negative; and that if the mortgagor, under such circumstances is neither tenant at will or at sufferance, within the statute, it will be difficult to give the statute any1 construction that will render it of value.

Allen obtained possession from Prior by threats of employing force. The jtossession thus obtained cannot be regarded as surrendered voluntarily, and would not deprive Prior of bis right to the ripened crops. It is suggested that the bill which was filed to set aside the foreclosure for fraud must be regarded in the light of a bill to redeem, and that when that was dismissed, there was an adjudication against Prior’s rights. -No qitestion of the right to redeem arises here, or of any other right springing from the relation of mortgagor and mortgagee. All such rights are undoubtedly extinguished. The question now is, whether by the implied assent of Allen, a new relation has not been created, under which Prior is protected in the possession until notified to surrender it.

I think the judgment of the Circuit Court should be affirmed.

Christiancy J. concurred.

Campbell J.

The principal questions arising in this cause are dependent upon the relations existing between plaintiff in error and one Henry Prior,vspringing out of a mortgage foreclosure and legal proceedings subsequent thereto.

On March 22, 1862, a mortgage made by Prior to one Elihu L. Clai'k was foreclosed by advertisement, and a deed executed, the redemption whereon was to expire in one year thereafter. On June 25, 1863, Clark conveyed the land to plaintiff, who, in the beginning of July, 1863, commenced summary proceedings to eject Prior. Before these proceedings could be heard, Prior filed a bill to avoid the foreclosure for alleged frauds and irregularities, and obtained an injunction to stay the legal process. This bill was finally dismissed, July 12, 1864.

Evidence was introduced of a complaint, under the statute regulating proceedings to obtain possession of lands, and a summons issued upon it, — -the summons bearing date August 29, 1864,— while the complaint, by a clerical mistake, was stated to have been sworn to, August 29, 1861 ; the mistake being explained by the oath of the agent who verified it. The Court rejected the docket of the Commissioner, showing proceedings to judgment on this complaint, and a writ of restitution issued thereon, and served, on the ground that the docket did not show the year when the proceedings were- instituted. . The writ of restitution having been used by the proper authorities to put plaintiff in possession, defendants are alleged to have entered with force and removed the standing as well as gathered crops. The Circuit Court, among other rulings, held the legal proceedings void; and held, further, that Prior was entitled to notice before he could be required to surrender possession.

Evidence was introduced tending to prove the premises had been sold on the mortgage, and also by the purchaser at the mortgage sale, for less than their value, but the testimony has no bearing upon any legal question now before us, and was probably introduced with a view to its effect on the jury. There are circumstances which, if we were at liberty to be moved by such considerations, might induce a belief that Prior’s land had been sold at a great sacrifice; but, if sold on his mortgage according to law, to the highest bidder, the law cannot save him from the loss; and his rights of tenancy can in no way be enlarged, because his property brought one sum instead of another. When a party gives a mortgage, whether ample or slender security, he has no right to calculate on any delay beyond its maturity; and cannot set up, against a foreclosure for its breach, any defense arising out of an expectation or hope of lenity, not based on some distinct understanding to that effect. Whatever may be the general disposition of creditors to procrastinate, it would hardly be safe to say that any one must stay proceedings to accommodate such ex-poctations. And when a foreclosure is actually had, the law is very explicit, that the redemption must be made within the appointed time, or the title will become absolute. If there are any elements in the case which affect injuriously the plaintiff’s possessory and proprietary rights, this is not one of them.

The principal inquiries, therefore, relate to the question whether, after obtaining an absolute title against Prior by the expiration of the statutory period for redemption, plaintiff or his grantor lost the right to have possession • of the estate which they so acquired.

I do not think there is any such defect in the proceedings to oust Prior as ..renders them invalid. So far as the alleged defects in the docket dates are concerned, I do not regard that record as fatally imperfect. While the date of August 29th is not set opposite any year, the docket shows that a summons was immediately issued upon the complaint, returnable September 2d, 1864; and the summons, produced and -proved in connection with it, is dated August 29th, T864, and is so returnable. The complaint is certified to have been sworn to on August 29th, 1861, but this is explained to have been a mistake. Had there been no appearance before the commissioner, or had there been any objection taken in the proceedings, it is possible this might have been a fatal error; but I do not deem it necessary to consider this, because Prior appeared on the return day of the summons, and joined issue on a plea of not guilty, without raising any objection to the legality or regularity of the proceedings. The date of the attestation became thereupon entirely immaterial.

Pleadings are always understood to date, as to their allegations, from their actual filing, and that is the only date material upon an issue, and may be shown by parol. Lester v. Jenkins, 8 B. & C. 389; Wilton v. Girdlestone, 5 Barn. & Ald. 847; Granger v. George, 5 B. & C. 149; Michaels v. Shaw, 12 Wend. 587; Lyttleton v. Cross, 3 B. & C. 317. Judgment having been rendered against him, he took no steps to remove it, either by appeal or certiorari. I do not understand upon what principle he can now attack the judgment collaterally. There is no authority for saying that such • proceedings, when a party has gone to trial without objection, are voidable, except in a court of review. And, until reversed, I think the proceedings conclusive.

But I think the rights of the plaintiff would stand equally well without reference to these proceedings.

The Corn-t charged the jury expressly that it was not a trespass in the defendants to enter upon the land and remove the crops, within a reasonable time after plaintiff obtained possession; and that plaintiff had no right in them. And the reason for this broad charge is probably found in the next instruction to the jury, that Prior was not called upon to leave, .until, as tenant at sufferance, he had received three months notice to quit, if he was allowed to remain and put in crops until June 23d, 1863, without objection, or any steps to obtain possession. The case shows there was no acquiescence except a mere inaction, without proof of personal knowledge or notice of Prior’s operations. The case then, upon this hypothesis — if there were no other facts modifying it — would present the question whether a mortgagor, holding over three months after his redemption expires, is entitled to notice to quit.

At the common law, inasmuch as a tenant at sufferance was not entitled to notice to quit, it did not become very material what classes of unlawful holding over were called by that name. And there are some authorities which classify mortgagors holding over, as such tenants. But since it has been found expedient to allow notice to tenants at sufferance, it has been found necessary to be somewhat more accurate, and as the law now stands with us, as well as elsewhere, there are either tenants at sufferance not entitled to any notice, or else there are holdings over after the expiration of lawful tenancies, which are something else»than tenancies at sufferance. It makes very little difference in the present case which of these results is accepted.

Our statute, allowing tenancies at will and by sufferance to be terminated by notice, inasmuch as it nowhere defines either of these tenures, must be presumed to adopt the common law definition, which, where applicable at all, reaches all cases where a person once having a lawful tenure “ continues after his estate is ended and wrongfully holdeth against another.” — 1 Inst. 51. There is no difficulty in learning when tenancy at sufferance begins. There is no gap between the lawful and unlawful holdings; and when the legal estate ends, the estate at sufferance at once succeeds, if the tenant remains in possession. It is also well settled, that a tenant at sufferance is not a trespasser, unless he attempts to hold over after the landlord re - enters and terminates that peculiar occupancy. — 2 Bl. Com. 150 ; Dorrell v. Johnson, 17 Pick. 263 ; Butcher v. Butcher, 1 B. & C. 399. The wrong is not criminal, but it is nevertheless by construction of law a wrongful act to retain possession of land a single moment after the right terminates; and there is no middle ground between a rightful and a wrongful occupancy. If Prior became a tenant at sufferance at all, he became such as soon as his redemption expired; and if entitled to notice at all, it must be that he was so entitled from the beginning, or else it must depend upon the mere arbitrary opinion of a court or jury, unguided by any common law or statute rule, how long the continuance of an unlawful holding, not assented to, must last, before the common law tenancy passes into something . else.

In New York, there is one case which undertook to furnish a rule upon the subject. The statute, there as here, contemplated a notice to terminate a tenancy at sufferance. There, as we shall see is also the case here, the statute in another place used language inconsistent with any right to notice, where certain tenants held over after their terms expired. In Rowan v. Lytle, 11 Wend. 616, where such a holding over had continued three months and twelve days from the termination of a lease, it was held the delay had not entitled defendant to notice. The court, in attempting to decide what delay would be long enough, lay down this rule. “The object of the legislature will be best promoted by holding that such notice is not necessary, unless the landlord has permitted the tenancy at sufferance to continue for such a length of time as to imply assent.” p. 620. This language is equivalent to holding, what under the statutes is I think the true rule, that when a tenant, in the cases specified, holds over beyond his term, he can never be entitled to notice unless he has become a tenant at will. For such tenancy always becomes tenancy at will the moment consent can be inferred. And such is Mr. Taylor’s interpretation of this very decision. — Taylor Land & Ten. § 65. In other words, until such assent removes the wrong, such a tenant has no rights whatever against the land owner.

Our statutes seem to remove any ambiguity on the subject. The provision concerning notices to terminate estates at will or by sufferance is pennissive in its form, and only declares that all such tenancies may be thus terminated. — § 2807 Comp. Laws.

The utmost that can be claimed for this is that it covers all such tenancies as are not otherwise provided for. In the chapter concerning summary proceedings for the possession of land, it will be found that certain classes of holding over (including the one now in controversy), are expressly distinguished from such tenancies at sufferance as require notice.— 2 C. L. § 4985. Those excepted classes are first, cases where persons, hold over after the term for which premises are demised is ended, or contrary to the conditions of any lease or agreement; second, cases where rent is in arrear after demand of possession; and third, where a person continues in possession of premises sold under mortgage or execution, after the redemption has expired. And, after providing for an immediate right -of possession in, these cases, the statute embraces in a fourth and distinct class, cases “ where any tenant at will, or by sufferance, shall hold over after the determination of his estate by a notice to quit, as provided by law.”

Here, then, we have the case of a mortgagee holding over, distinguished from such tenancies at sufferance as require- notice, in the most unequivocal terms. And even if we could under other circumstances be allowed to regard the tenant’s ignorance in fact of the termination of his tenancy, as any reason for affecting the rule, we can have' no right to do so under this statute, which is evidently designed to protect all who cannot be supposed to have the means of knowing where their rights end.

The cases excepted from the necessity of notice are all cases where the tenant has full means of information. A man must be supposed to know the terms of his tenure, and therefore a lessee who violates his lease must be held to a knowledge of its violation. A mortgagor must know, or ought% to know, when he is in default; and, if he does not know when his land is sold, he knows where to examine and inquire; and an inquiry once a year, at the registry, can always enable him to find out when he must redeem or vacate possession. Those cases where a tenant cannot be expected to be able to ascertain the determination of his tenancy without notice, are left to be governed by the provisions requiring such notice.

But a court can not, on any safe principle, even where the rule of law is severe, undertake to change it on any imagined ground of hardship. Still less can it be permissible to change a certain and simple rule of law into one dependent on the fluctuating notions of a jury. If we hold that a mortgagor retaining possession is entitled to notice, under any circumstances short of his being a tenant at will, we have no authority of law for holding that he is not entitled to it at once.

There can be no dispute as to when the rightful holding ceases, and none therefore as to the time when the wrongful holding begins. The expiration of redemption is the only point of time when the tenure changes, and then, if ever, the holding by sufferance commences.

In the case of Livingston v. Tanner, 12 Barb. 481, where a tenant for the life of another held over innocently, after the life estate had, without his knowledge, been terminated, the Supreme Court, moved by the apparent hardship of the case, after a delay of four months before possession demanded, undertook to bring the party within the statute providing for terminating tenancies at sufferance by notice, although there was another statute which declared such persons trespassers. But this decision was reversed by the unanimous opinion of the Court of Appeals; who held that, while the • defendant was undoubtedly a tenant at sufferance by the common law, the fact that a statute made special provision for his case showed that this tenancy was thereby removed from its common law designation, and required no notice to terminate it. — Livingston v. Tanner, 14 N. Y. 64. And the delay in bringing suit was regarded as entirely immaterial, so long as the landlord had not given his consent to the new occupation, so as to make it a tenancy at will. It was the tenant’s duty to leave, whether the landlord desired personal possession or not.

It seems to me clear that under oúr statute, whether this be technically a tenancy at sufferance, or any. other species of wrongful deforcement, it is not such a tenancy as requires notice to terminate it.

It may also be remarked that even if there had been any doubt about Prior’s position under the first forecloseure, and after the delay referred to, there can be none as to his duty on the dismissal of his bill. It is a well settled rule that a mortgagor can file no bill for relief, which will not be regarded as a bill to redeem; and it is equally settled that the dismissal of a bill to redeem operates as a foreclosure. Prior certainly had notice of the dismissal of his own bill; and there has been no laches since. This confirmed the validity of the first foreclosure. And he could not at once rely on it and repudiate it.

I think, however, as before intimated, that his tenancy was one that required no notice to terminate it, and also that the Commissioner’s proceedings to oust him -cannot be assailed collaterally.

As these points dispose of the case, it is not necessary to refer to the other errors assigned.

Martin Ch. J. concurred.

The court being thus equally divided, the judgment below was affirmed.


source: Caselaw Access Project

author: Christiancy J.

license: Public Domain

text:
    John J. Beeker and others v. Hastings and others.

      Sale of chattels: Caveat'Hmptor. Complainant being owner of certain real estate in Detroit, sold the same to defendant, and received in payment therefor certain copper stock and defendant’s note. Defendant directed complainant before taking the stock, to make inquiries as to its value and not to rely upon his, defendant’s, estimation of it. The stock proved worthless. Held% that in such a case, where parties stand upon equal terms as to their opportunity of obtaining information concerning the subject matter of sale, each is bound to rely upon his own judgment and means of knowledge.

      Heard October 23d.

      Decided November 8th.

    Appeal in Chancery from Wayne Circuit.
    The bill in this cause was filed to set aside a conveyance on the ground of fraud and inadequacy of price. It was dismissed in the court below.
    The facts are stated in the opinion.

      J. P. Whittemore, for complainants.
    The bill in this case seeks to rescind the deed given to the defendants as obtained by fraud and through a bargain, “such as no honest or fair person would accej>t on the one part, and such as no person, not under delusion or imposed upon, would grant on the other; a transaction which shocks the conscience, and produces an exclamation.”
    Land, which the defendants admit in their answers was worth $1,600 cash, was sold for nothing, and the title warranted to the extent of the consideration of $2,000.
    1. The consideration was so inadequate as, from that fact alone, to raise the presumption of fraud.
    2. The parties were unequal. The grantees were sharp, shrewd speculators; the grantors, an ignorant German woman and her daughter, a child of sixteen years, and her son, scarcely arrived at full age, whose occupation entirely unfitted him for such a transaction. They were all but slightly acquainted with the English language and entirely ignorant of business transactions.

      3. The defendants show that they have abandoned the contract on their part, which, as they claim it to be, required them to proceed and perfect the title at their own expense.
    The excuse for so doing, which they allege, i. e., the non-fulfillment by Beeker, on his part, though a good answer to an action of damages on the contract, amounts to an election to rescind the contract for breach of it by the other party. It places the parties where each can recover back what has been paid, or, if nothing has been paid, simply annuls the contract.
    The warranty deed can not be allowed to stand on the defendant’s own showing. The prayer of the bill to annul it, and that defendants reconvey, so as to place the complainants in the same position they were before its execution, must be granted; and then, if there is any legal or equitable remedy for defendants in the case, after this deed is annulled, let them seek it where it is to be found.

      Cleveland Sunt, for defendants.
    1. There is no claim made in the bill that the grantors of the deed were idiots — even were they permitted to stultify themselves — nor more ignorant or incompetent than the average of that class of uneducated foreigners; nor does complainants’ testimony show that degree of ignorance that unfits men for the transaction of ordinary business. So that no extraordinary case of incapacity being made out, this court will not take the time to weigh any nice questions of capacity or incapacity.
    A Court of Equity will not measure the size of people’s understandings and capacities, there being no such thing as an equitable incapacity where there is a legal capacity. — yStory_ Sq. '■ Jur. § 236 to 238; 1 Johns. Ch. 351; Medfield on Wilts, 106-.to 133.
    Capacity will be presumed, and the burden of proof is on the complainant to show the want of it. -— JRedjield on Wills, 39, 40, and Note.

    If the question of fraud is disposed of, the adequacy or inadequacy of the price paid for the land is also disposed of. “For courts of Equity as well as courts of Law act upon the ground that every person who is not from his peculiar condition or circumstances under disability, is entitle to dispose of his property in such manner and upon such terms as he chooses, and whether his bargains are wise and discreet, or profitable, or otherwise, are considerations not for courts of justice, but for the party himself to deliberate upon.” — 1 Story JEg. Jur. 244, 5, 6; 1 Gox. 383; 5 Vesey 845.
    Inadequacy of consideration is not then of itself a distinct principle of relief in equity.
    The burden lies with the appellant on appeal, and this being a question of fact, and the testimony being conflicting, the appellant must make out a clear case of mistake in the court below. All presumptions are against him. —1 JBarb. Gh. JPr. 395; 4 JEng. JL. cO JE. p. 3.
   Christiancy J.

The decree of the court below declaring the deed void as to complainant Maria E. Braun, on the ground of her minority, not having been appealed from by her or the defendants, we are only to consider the case so far as it relates to the complainant John J. Beeker.

Complainants and their mother, since deceased, believing themselves to be the owners, and being in possession of a lot on the plat of a part of the Louis Moran farm, undertook, through complainant John J. Beeker, to sell the same. He employed an agent by the name of Gee to make the sale, but having for some time been unable to find a purchaser, he at length introduced said John J.-'Beeker, to dbfepdant Hastings, as a person likely to purchase. Hastings/went two or three times to see the property, and the. ppio| Jjalked of to him was two thousand dollars, which from the evidence, we think was its full value with a good title. Before anything- was concluded, Hastings got defendant Shepard to join him in the proposed purchase, and Shepard having examined the record, found complainants had no title; the deed from one Hamm to the father of complainants, through which they claimed having apparently, by some mistake, entirely unexplained, described lot four instead of lot five, he or his grantor having owned the latter, but not the former. The mistake is in no way explained, nor do the circumstances appear upon which to form any opinion, whether the mistake was one of which a correction could be compelled. The father had purchased in 1850, lived upon it until his death in 1854 ; and complainants had continued to live thereon until 1856, when the sale to defendants was made; and it does not appear that any person had claimed title against the complainants or their father ; but this is all that a]Dpears in reference to the title.

Complainants and their mother had never known or suspected any defect of title until informed of it by defendant, and were very naturally somewhat alarmed, and, as it seems became all the more anxious to sell; but defendants, after this discovery would not of course make the purchase and pay the value of the property for so uncertain a title: but (through Hastings) they offered certain copper stocks and their note or agreement to pay three hundred dollars, payable when a good title should be perfected. The result was that the complainants consented to and did receive the copper stock and this note or agreement, and executed to the defendants a deed of the property.

The bill claims the sale to be void on the ground of the fraud and imposition of Hastings, by which, as they allege, they were induced to take the stocks. But in this we are not satisfied that the bill is sustained by the evidence. The stock, it is true, turned out to be utterly worthless. But whether the title conveyed to defendants was of much greater value, is left quite problematical upon the evidence. The complainant John J. Beeker, who did the business for himself and mother and sister, was doubtless deceived as to the value of the stocks, and probably acted imprudently in making the trade; but though a young and inexperienced German who understood and spoke the English language imperfectly and entirely ignorant of copper stocks and their value, he does not seem to have been particularly deficient in natural capacity. He was doubtless easily imposed upon, and it may be that defendant Hastings neglected the performance of a duty which strict morality may have imposed, when he failed to explain to him all he knew about the uncertain value, or want of value of the stock. Strict morality might have required him even to caution the complainant against parting with anything he considered valuable in exchange for such stock, and we may feel that he has made a bargain which a purely conscientious man ought not to insist upon; yet he stood in no confidential relation to complainants or any of them. They stood upon equal terms, except that one was more intelligent than the other. The one was seeking to sell, and the other to purchase, and each should have relied upon his own judgment or taken such advice as he deemed proper; and there was no sufficient reason why complainants should rely upon the opinions or representations of the other, either as to the value of the title conveyed by the deed on the one side, or that of the copper stock given for it upon the other. Hastings may have recommended the stock to be of greater value than he really believed it to be; yet he did not ask complainant to take it upon his estimation of its value. He handed to him .these stocks (with several others which were in fact of some value) to go and make inquiries of its value for himself. Complainant, it seems, only inquired of his own agent, Gee, who he says merely told him that he could rely upon Hastings, and that Hastings would not cheat him.

It does not appear that this was communicated to Hastings, nor is there any evidence showing combination or concert between him and Gee. It was complainant’s own folly to take the stock without further inquiry. He had fair notice that^ he was to ascertain the value of the stock for himself. And though we may feel that defendants have made a bargain which a conscientious man ought not to insist upon holding, we can discover no ground on which we can set the sale aside for fraud' in procuring the complainants to take the stock, without laying down a principle which might disturb many titles, and which would be likely to do more injury in other cases, than we should remedy in this.

But there is another branch of the case of which we have been compelled to take a different view. The deed executed by complainants and their mother on the sale was a warranty deed, containing covenants of seizin in fee, against encumbrances, and warranty, and it purports to have been made for the consideration of two thousand dollars. Yet the answers of the defendants and their own testimony leave no room to doubt that by the understanding and agreement between them and the complainants, the defendants were to take the property at their own risk with the single exception that the amount they might pay to remove the small mortgage of about eighty dollars and the expenses of perfecting the title were to be deducted from the three hundred dollars for which their note or agreement was given. It is entirely clear that this was the understanding of the parties to the transaction, and no satisfactory reason is given, nor do we see how any could be given consistent with the testimony of the defendants themselves for the execution of the deeds with the covenants mentioned. It is evident the complainants did not understand the deed to contain these covenants, or that they were any of them to be accountable for any defect of title. They understood the English language very imperfectly and complainant, J. J. Beeker, upon whom the others seem to have relied was unable to read writing; they were ignorant of the modes of doing business of this kind. Hastings was an intelligent business man. They did not read the deed, nor does it appear to have been read or explained to them; it was prepared by Hastings himself, and they doubtless executed it in full reliance upon his fidelity and in the belief that he had drawn it in accordance with the understanding. Whether Hastings intended it, or whether it was the result of his mere carelessness, (which we are inclined to believe), the effect was a fraud upon the complainants. And if the bill had been properly drawn, making this a specific ground of complaint, the complainant John J. Beeker might we think upon the evidence have been entitled to a decree for the release of the' covenants of seizin and warranty. But the bill is silent as to this fraud or mistake; it is not, therefore, properly in issue, and we cannot therefore grant him this particular relief in this case. The decree of the court below dismissing .the bill must be affirmed, with costs, without prejudice to complainants’ right to bring a bill for the correction or reformation of the deed, and for a release of the covenants.

The other Justices concurred.


author: Cooley J.

text:
    City of Grand Rapids v. Henry Hughes.

      Municipal corporations — Encroachments on streets. Under tlie laws of Michigan, relating to streets and public ways, obstructions which cumber the open way and render passage and travel more difficult and dangerous, and encroachments which undertake to appropriate a portion of a street, by fences, walls or buildings, have always been carefully distinguished, and different proceedings and penalties provided therefor; the power therefore given to a municipal corporation to impose penalties for cumbering streets, would not warrant imposing them for encroachments upon streets.

      Enforcing by-laws by penalties. Where a city charter specifically enumerates various powers which the Common Council may render effectual by penal prosecutions, such enumeration is an implied exclusion of the right to impose penalties in other cases.

      Heard October 18th.

      Decided November 8th.

    Error to tbe Recorder’s Court of the City of Grand Rajfids.
    This was an action to recover a penalty for encroaching upon the public highway in the City of Grand Rapids.
    It was brought under the following ordinance adopted by the Common Council of said city, to wit:
    “In case any building, fences or other improvement which now is or may hereafter be erected within the City of Grand Rapids, shall extend into or in any manner encroach upon or obstruct any highway, street, alley or public square, the City Superintendent may serve or cause to be served a written notice on the owner or occupant thereof, if residents, and if not residents by posting the same in a conspicuous place, therein specifying the location and extent of such encroachments, and requiring such owner within thirty days, to remove the same from off such highway, street, alley or public square, and if such owner shall not, within the time specified in such notice, remove such obstruction or encroachment, such owner shall be liable to a penalty of ten dollars for every day thereafter, until such encroachment or obstruction shall be removed.”

      The plea was the general issue. Judgment was rendered in favor of the defendant.
    The case involves the power of the Common Council to impose a penalty in such a case.

      W. A. Robinson and G. I. Walker, for plaintiff in error.

      Gray & Thompson, for defendant in error.
    1. The Common Council had no right to pass the ordinance under which this action is brought. ,

      a. The declaration implies, that the ordinance in question was adopted under and by virtue of the power conferred upon the Common Council, by clause 8, sec. 10, of the charter (S. L. 1857, p. 285 ). This clause relates to the “cumbering” of streets, etc. We claim that “cumbering ” and “ encroachment ” are two entirely different matters, and that the defendant was not guilty of “ cumbering. ”
    Section- 21, clause 7, of the charter of the city of Detroit, provides for an ordinance to prevent and prohibit the encumbering of public docks, etc. — Laws of 1857, p. 95. Clause 8, p. 96, prohibits the erection of buildings on them. Clause 13, p. 97; authorizes the Common Council to prohibit and prevent the encumbering of streets, etc. Clause 24, p. 99, provides for an ordinance to prohibit and remove from streets and highways, encroachments by buildings, fences, etc. — 1 Comp. L. p.^366, §§ 1086, 1087, made an evident discrimination between “ obstructions ” and encroachments.
    The same distinction is found in plaintiff’s charter. — Laws of 1857, p. 285, 287.

      b. No power is given to pass any' ordinance to prevent and remove encroachments. .It does not come under sec. 10, p. 284, which defines the general subjects, relative to which the Council may adopt “ordinances, by-laws, and restrictions.” Many other sections are found, in which this power is granted: — p. 287, sec. 12; p. 313, see. 34; p. 322, sea. 63; p. 323, seo. 1, 2, 3 \ p. 325, sec. 11 \ p. 326, sea. 13. But sec. 11, p. 287, does not grant it. The right of the Council to enact this ordinance must come under this section, if any.
    Such power cannot be taken by implication, since this is not necessary to enable the Council to carry out the powers which are expressly given it.
    Sec. 34, 313, makes this body, Commissioners of Highways for the city. Their duties and powers are defined by the laws of the state, except so far as increased or restricted by the charter. For these powers and duties, see 1 Gomp. L. p. 340. Their mode of action, in cases of obstructions or encroachments, is laid down on p. 366. The Legislature have deemed these provisions ample and sufficient.

      a. By § 14, p. 288 Laws of 1857, the Council have no power to direct a penalty, except where if has authority by the charter to pass an ordinance. The authority must therefore be express, and cannot be taken by implication. The language is too distinct to admit of any other construction.
   Cooley J.

The exceptions which were argued in this case relate to the exclusion of evidence; but the declaration is before us, and if it appears from that, that the action could not be sustained upon any evidence which could be given under it, it would be idle to pass upon the exceptions.

The action is brought under an ordinance of the city of Grand Rapids, which provides that in case any building, fence or other improvement, which now is or may hereafter be erected within said city, shall. extend into or in any manner encroach upon or obstruct' any highway, street, alley or public square, the City Superintendent may serve or cause to be served a written notice on the owner or occupant thereof, if a resident, and if not a resident, by posting the same in a conspicuous place, therein specifying the location and extent of such encroachment, and requiring such owner within thirty days to remove the same, from such street, &c., and if such owner shall not, within the time specified, remove such obstruction or encroachment, he shall be liable to a penalty of ten dollars for every day thereafter, until such obstruction or encroachment shall be removed.

The particular encroachment complained of in this case, is, the enclosing a portion of the Grandville road, so called, with a board and post fence, and the erection of a dwelling house within the enclosure. This appears to have been done in 1851, six years before the ordinance was passed, and before the amended city charter under which the power to pass the ordinance is claimed.

The charter empowers the Common Council of the city to pass ordinances for a great variety of purposes, and to prescribe a penalty not exceeding one hundred dollars for their violation. Among the purposes specified is, “ To prevent the cumbering of streets, side - walks, cross-walks, lanes, alleys, bridges, aqueducts, wharves or slips, in any manner whatever.” — Laws 1857, p. 285. From the record it is to be inferred that the Common Council deduce their authority to pass the ordinance in question from this provision. K so, we do not think it can •be sustained as applicable to cases like the present.

Our laws have always made a distinction between cumbering or obstructing a public way, and encroaching upon it. The former term has been applied to impediments to travel and passage placed in the open street, and tending to make its use difficult or dangerous; while the latter has embraced the actual enclosure of a portion of the street by fences or walks, or occupation by buildings. The mode of dealing with the two offenses has almost always been different, and the penalties also. We need only to refer to Code of 1827, p. 396 - 7, § 25 and 26; Code of 1833, p. 111; R. S. of 1838, p. 128; R. S. of 1846, p. 138; Comp. Laws, p. 366; Laws of 1861, p. 153. The city charters have 'made the same distinction, and we are not at liberty to overlook it. An encroachment upon a street may, in one sense, be said to “cumber” it, but as the legislature has n liver employed the two words as synonymous terms, we cannot hold that a power to impose penalties for cumbering or obstructing the streets will authorize proceeding in the same manner for encroachments.

The charter, however, empowers the Common Council to prevent and remove all encroachments upon the streets; and it may perhaps be. thought that this would authorize them to impose penalties as one means of preventing or removing such encroachments. But where the charter specifically enumerates various powers which the council may render effectual by means of penal prosecutions, we think this enumeration is an implied exclusion of the right to impose penalties in other cases. — Child v. Hudson's Bay Co. 2 P. Wins. 207; State v. Ferguson, 33 N. H. 424. We think, therefore, that while the legislature has fully authorized the council to impose penalties for obstructions, it has carefully withheld the power in case of encroachments.

Many reasons may have operated upon the legislative mind to induce them to make this distinction. Obstructions which “ cumber ” a street or walk are commonly the result of carelessness, negligence or mischief, and require prompt remedies; while encroachments usually proceed from a claim of legal right to the land occupied, and the ordinary legal remedies are sufficient for the trial of this right. The merchant who allows his boxes and barrels needlessly to cumber the street .after notice to remove them, may properly be fined for his neglect; but we doubt if any legislature would intentionally authorize ordinances under which one who many years before had erected a building upon what he claimed to be the line of the street, might be ruined by the accumulation of penalties against him at the rate of ten dollars a day if he failed to acquiesce in the public right, and destroy or remove the building when the notice was served upon him. And as the council have the same power to impose continuing penalties of a hundred dollars a day as of any smaller sum, it is easy to see that cases may arise where one acting in perfect good faith may be severely and needlessly punished for the simple assertion of what he believed to be his rights, and under an ordinance which, if not strictly ex post facto in the legal sense, is so at least to the common apprehension as well as in its consequences.

'Under the general law of the state the penalty for an obstruction to a public highway is twenty-five dollars, while that for an encroachment is limited to fifty cents a day. — Irnos of 1861 p. 153. It is not probable that the legislature supposed they were authorizing the imposition of penalties to two hundred times this amount in the city of Grand Rapids. On the contrary, it is to be inferred that when they had empowered the city authorities to proceed themselves to the removal of encroachments, they had conferred all the power over the subject that they thought was needed in addition to that which the public authorities possessed by means of the ordinary remedies.

As this disposes of the case, we do not discuss the . other questions which arise upon the ordinance. The judgment of the Recorder’s Court must be affirmed, with costs.

The other Justices concurred.


text:
    Elizabeth Tong, by next friend, v. Percy Marvin and others.

      Fo'aud, when allegations of, sufficient: What facts necessary to state. The bill in this case alleged that the mother of complainant being seized of certain real estate in Michigan, died in 1857, leaving her husband, Proctor Tong, and the complainant (who was then seven years old) her sole heir at law; that a mortgage upon said premises had been foreclosed by advertisement during said year, and the land sold, for about $700; that one Daniel Marvin, father of defendants, desiring to own said land, obtained a quit claim, deed thereof from complainant’s father, by false and fraudulent representations, and afterwards procured the appointment of his son Lucius Marvin as guardian for complainant, to have her interest in the premises sold; that he then loaned said Lucius sufficient money to redeem said premises from said foreclosure; that said land was afterwards sold at guardian sale and bid off by said Daniel for the sum of $925; the real value being $2,000 and over; and that the acts of said guardian originated with, and were directed by said Daniel Marvin for the purpose of enabling him to become the purchaser of said land below its true value. Held,

    1. That said allegations, if sustained by evidence, made out a case of legal fraud.
    2. Equity must have regard to the effect of false and fraudulent statements, rather than to the person to whom they are made.
    3. Where allegations of fraud are stated in a bill, it is not necessary that the facts and circumstances which tend to establish the fraud should be detailed. Where the facts which constitute the fraud are set forth with an averment of the injurious result, the case is sufficiently made by the pleadings, and a detail of the circumstances which tend to establish a dishonest intent in defendant’s action is more properly left to the evidence.

      Tenancy by the Curtesy, repeal of. The acts of 1844, 1846 and 1855 relative to the protection of the rights of married women, together with the constitutional provision on the same subject, entirely abrogate the existence of prospective tenancy by the curtesy. Every quality and «incident that is necessary to constitute such a tenancy is destroyed by the provisions of these acts.

      Heard October 19th, 20th.

      Decided November 8th.
    Appeal from Huron Circuit in Chancery.
    The bill in this cause was filed by complainant, through her next friend, against her guardian, Lucius Marvin and other defendants, charging fraud in the sale of certain real estate, and praying that the same might be set aside.
    The bill also prayed that a certain deed of the premises obtained from her father by the purchaser at a certain guardian sale through fraudulent representations might be set aside", and the title thereto declared to be vested in her.
    Defendants demurred to the bill.
    The demurrer was sustained, and the bill dismissed.
    The facts necessary to an understanding of the cause appear in the opinion.

      Win, I. Webber for complainant.
    1. The deed of Proctor Tong of June 1st, 1857, conveyed no title. He had not an estate by the curtesy in the land.

      a. The statute of 1855, for the benefit of married women, in connection with the constitutional provision and other legislation on the subject, has repealed the old statute which gave an estate by the curtesy. The real estate of the wife continues to be hers, and may be disposed of, as if she were unmarried. Under the old statute she could not devise it so as to prevent curtesy. If she may do so now, the old statute is changed in that respect; and there can be no curtesy initiate before the death of the wife, nor consummate on her death; but her estate descends, in the absence oí a will, free from curtesy, the same as her devise would do, if she ■ had made a will. By the former law, as the wife could not sell without her husband’s consent, so she .could not deprive him of his curtesy, but now it is at her option whether she will convey in her life time or devise the same, and it would be strange indeed, if the estate by the curtesy should depend on the mere accident of will or no will.

      b. The mortgage was made April 16th, A. D. 1839, and was due April 16th, A. D. 1842. By the law as it then stood the mortgagee held the title. When in 1845 Timothy L. Howe died, Thaddeus, and after him in 1855, Olive B. his mother inherited a mere right to

      redeem; she was not seized of the land, and the mortgage was in full force, and the title remained in the mortgagee until after her death in 185 7. To Elizabeth descended a mere right to redeem, to which curtesy could not attach. 2 Comp. L. § 2803.

      O. If Proctor Tong had an estate by the curtesy, by making the deed to Daniel Marvin, he forfeited his entire estate, and Elizabeth had an immediate right of entry. — 21 Me. 312; 1 Greenlf. Cruise, Tit. V. Chap. 2, § 31.
    2. But even if the deed of Tong did convey a life estate to Marvin, it affords no reason why this bill should be dismissed. It goes only to the extent of the relief. The guardian’s deed' should be set aside, in order that when the life estate shall cease, the complainant’s estate in fee may be clear from any and all incumbrance.

      Mitchell & Farrand, for defendants.
    1. It appears by the bill, that Proctor Tong, the guardian, had the actual right to the present possession of the land, as tenant by the curtesy; and if so,. the complainant has no present right that she can enforce by bill or otherwise. He being tenant by the curtesy, her right must remain in abeyance, until his death; and until then she has no more right with, or control over the land, than a mere stranger, and certainly no possessory right. — Comp. L. § 2803 and 3291.
    The husband, Proctor Tong, being tenant by the curtesy, had a full right to convey, as the bill states he did, his life estate to the ancestors of the defendant. — 2 Mich. 93.
    •Proctor Tong, the tenant by the curtesy, having conveyed his rights to the ancestor of the defendants, neither the complainant or any one else can interfere with their possession, or possessory rights during his life.
    He alone can take advantage of any fraud in that conveyance.

      2. While the bill assumes fraud, it makes no statement of facts showing fraud, or out of which fraud maybe presumed. The mere charge or statement of fraud, or fraudulent intent, without a statement of facts of themselves, showing fraud or fraudulent intent, is not sufficient. There must be something more than assumption or presumption.
    The mere allegation that the deed was procured from Proctor Tong, fraudulently, is of no avail, without showing in what the fraud consisted. But even if it was fraudulent, as to him, the complainant cannot take advantage of it.
    There is no fraud alleged in procuring the guardianship, and no intent of fraud charged in executing the guardianship. — 3 Mich. 531.
   Cooley J.

The demurrer in this case is supposed to be 'sustainable on two grounds: 1. That the bill, in charging fraud, merely sets forth conclusions, without giving such facts as would warrant the conclusions: 2. That even admitting the case made by the bill to be true, the complainant is not entitled to relief, inasmuch as the outstanding life estate of Proctor Tong, as tenant by the curtesy, has become vested in the defendants by means of the quit claim deed to Daniel Marvin.

The bill, in order to show fraud, recites the following facts: That the mother of complainant, being seized of the title to the land in controversy, died in .1857, leaving surviving her, Proctor Tong her husband, and this complainant, her sole heir at law, both residing in the state of New York; that the premises, which are situate in Huron county, were at that time subject to a mortgage, which was foreclosed by advertisement June 9, 1857, and the land sold for $675 93 ; that Daniel Marvin was desirous of becoming the owner of said land, and of depriving complainant thereof, and for that purpose procured an order from the Probate Court of Tuscola county — to which Huron was then attached — appointing his son, Lucius S. Marvin, guardian for complainant; that he then loaned said Lucius the money to redeem the premises from said foreclosure sale; that thereupon said Lucius petitioned the Probate Court for license to sell said lands, representing that complainant had no other property out of which he could be reimbursed said redemption moneys; -that license was granted for that purpose, and a sale made August 7, 1858, to said Daniel Marvin for the sum of $925 ; that a report of sale was made, showing the expenses to have been $204.19, which, together with the redemption moneys, exceeded the sum for which the land was sold; that the premises at that time were worth more than $2,000, and that the proceedings of said Lucius S. Marvin, pretending to act as guardian for complainant, were originated and directed by the said Daniel Marvin for his own benefit, and for the purpose of enabling him, the said Daniel, to become the purchaser of said land at a price much less than its true value, and thus to defraud complainant. The bill also alleges that said Daniel, before he caused such appointment to be made, applied to said Proctor Tong, represented to him that said land was of little value and not worth redeeming from said mortgage, and by means of these and other false and fraudulent representations, procured from him a quit claim deed of said premises, bearing date June 1, 1857. The complainant at this time was seven years of age.

We have no doubt that these allegations, if sustained by the evidence, make out a case of legal fraud. The false representations made to the father, by means of which a release of his supposed interest was obtained, had a direct tendency to induce the natural guardian of complainant to abandon all care for her interest in the land, and are equivalent, in the situation in which she then was, to ‘false representations made directly to the person to be defrauded, when such person is capable of managing his own affairs. Equity must have regard to the effect of false and fraudulent statements, rather than to the person to whom they are made; and in most cases where a minor of this tender age is defrauded, it is only accomplished by operating upon friends and natural protectors.

But if the original transaction was, as is alleged in the bill, originated and carried through by Daniel Marvin for the purpose of obtaining complainant’s land, at an inadequate price, and the guardian was a mere instrument in his hands for that purpose, not acting at all in the interest of complainant, but solely in that of Daniel Marvin, we think a fraud both upon complainant and upon the law has been committed, which requires the intervention of equity. It is not, however, necessary that the facts and circumstances which tend to establish the fraud should be detailed in the bill. Where the facts which constitute the fraud are set forth, with an averment of their injurious result, the case is sufficiently made by the pleadings, and a detail of the circumstances which tend to establish a dishonest intent in defendant’s action, is more properly left to the evidence. — Story Eq. Pl. § 252 and cases cited.

The principal question in the case, however, is whether Proctor Tong, the father of complainant, had an estate by the curtesy which was conveyed to Daniel Marvin by his deed of June 1, 185L This question depends mainly upon the proper construction of the statutes of 1844, 1846 and 1855, relative to the property and rights of married women, and the constitutional provision on the same subject.

And in approaching this subject we have earnestly endeavored to arrive at the true meaning of the Legislature and of the people in adopting these several provisions, that we may give effect to their intention if possible. We have not felt ourselves at liberty to question, with any speculations of our own, the wisdom of the policy adopted in this state relative to the rights of married women, and we should feel conscious of usurping powers which properly belong to another department of the government, if, instead of giving effect to a plain declaration of legislative will, we should endeavor to apply arbitrary rules of construction, and thereby put upon the laws a forced and unnatural meaning with a view to making them correspond to some standard of our own, instead óf that which has been adopted by the law-making departments.

The control which a husband has over the person and estate of the wife at the common law is so great and so liable to abuse that it has for a long time been the subject of complaint, and of frequent interposition by courts of equity. He had, 1. The control of her person, and the right to appropriate her earnings to his own use; 2. He became by the marriage the owner of such personal estate as she then possessed, and of all that she should thereafter acquire during coverture; 3. He had a right to reduce her dioses in action to possession, and to dispose of her chattel interests in lands to his own use; 4. He became vested with her estates of inheritance during the coverture, and if he survived her, and issue capable of inheriting it had been born to them, he had a life .estate therein; and 5. In case of their separation, he had the better right to the control and custody of the children of the marriage. The corresponding rights of the wife were, 1. A right to support, and to have'her debts before marriage paid by the husband; and 2. A life interest in the one-third part of his estates. of inheritance if she survived him. To these equity added, 3. An equity to a reasonable settlement, to be made from the property brought by her to the husband, for the support of herself and her children.— Udell v. Kenney, 3 Cow. 590; Van Duzer v. Van Duzer, 6 Paige, 366.

The act of March 11, 1844, “To define and protect the rights of married women,” .made an important change in the rights acquired by the husband by the marriage, without at the same 'time diminishing his obligations. By this it was provided, “That any estate, real or personal, which may have been acquired by any female before her marriage, either by her own personal industry, or by inheritance, gift, grant or devise, or to which she may at any time hereafter be entitled by inheritance, gift, grant or devise, and the rents, issues, profits and income thereof, shall be and continue the real and personal estate of such female after marriage to the same extent as before marriage, and none of said property shall be liable for the husband’s debts or engagements, but such property shall be liable for all the debts of the wife contracted prior to.the marriage.”

It will be seen that this statute took away entirely all present right of the husband to the property, real or personal, of the wife, and to the rents and profits thereof. It did not, however, interfere with his common law right to the custody and control of her person, and to her earnings, nor did it expressly vest her with power to dispose of her property without his co-operation. Whether it left him to succeed to any rights in it at her decease is another question.

The provisions of the act of 1844 were incorporated in the Revised Statutes of 1846, in a modified form. Section 25, of Chapter 85, embodies the original act, with a proviso added, “that nothing in this section contained shall be construed to authorize any married woman to give, grant or sell any such real or personal property during coverture, without the consent of her husband, except by order of the Judge of Probate, or the proper court of the county; and provided further, that upon a separation between such husband and wife, saving by an adjudication of court, such married woman shall in no case be authorized to remove any such property from the premises of her husband without his consent.”

The next section (26) gave to the Circuit Court of the proper county concurrent jurisdiction with Chancery in cases arising under § 25, and § 27; provided that “ If any married woman shall die without disposing of any such real estate, the husband surviving her shall have a life estate therein by the curtesy.” That this section was adopted in reference to § 25, and with a view to restraining what would otherwise be its operation, or at least to put at rest any Question on that subject, is apparent from the connection. Another section in the statutes of 1846, — Gh. 68, § 1 — empowered married women to dispose of real or personal property by will, with the written consent of their husbands, and still another defined curtesy as follows: “ When any man and his wife shall be seized in her right of any estate of inheritance in lands, the husband shall, on the death of his wife, hold the lands for his life as tenant thereof by the curtesy: Provided, that if the wife, at her death, shall leave issue by any former husband, to. whom the estate might descend, such issue shall take the same, discharged from the right of the surviving husband to hold the same as tenant by the curtesy.” Gh. 66, § 30. This section, in requiring a joint seizure in husband and wife, was less broad than Section 27 of Chapter' 85, and would seem to be idle and futile if curtesy was given by that section in all cases where the wife was seized of an estate of inheritance, and the husband survived her.

It will be seen that thus far no power is in terms given to the wife to dispose of her property, or of the issues thereof, except with the consent of the husband, or under the order of some court of competent jurisdiction ; and the main pm'Pose of the statutory provisions which protected her in the title, would seem to have been to preserve 'the property for the benefit of the family against its being squandered by the husband or seized by his creditors. But the Constitution of 1851 went further, and added to a provision in substance the same as the act of 1844, the words, “and may be devised or bequeathed by her as if she were unmarried..” Art. 16, §5.

We come now to the act of 1855, “relative to the rights of married women,” Comp. L. § 966 ; which not only embodies this constitutional provision, but in brief and comprehensive words gives to the wife full and absolute control of her real and personal estate, with power to contract, sell, transfer, mortgage, convey, devise and bequeath the same, in the same manner and with the like effect as if she were unmarried. It is difficult to read this statute without coming to the conclusion that it was designed to cover the whole subject embraced in the provisions of sections 25, 26 and 27, of chapter 85, above quoted. We have no doubt such was its purpose. And not only does it totally abrogate all control of the husband over the wife’s property, and authorize her to dispose of it without the intervention of any court; but it also fails to re - enact the provisions of section 27, and thereby by implication, as we think, repealed them. Dash v. Van Kleeck, 7 Johns. 497; Giddings v. Gox, 31 Vt. 609. And we have now to see whether the general provision on the subject of curtesy above quoted from the Revision of 1846 (Ch. 66, § 30,) is consistent with this act of 1855, and the constitutional provision quoted, and can stand with them.

At the common law the incidents to curtesy were, marriage, seizin in the wife of an estate of inheritance, birth of living issue, which by possibility might inherit it, and death of the wife. Co. Lit. 29, b; 4 Kent, 29. The husband’s right became initiate the moment the issue was born. The husband and wife were said to be jointly seized; Melvin v. Proprietors, etc. 16 Pick. 161; Weisinger v. Murphy, 2 Head, 674; and this is the idea of our statutes of 1838 (p. 265), and of 1846 as above quoted; though the actual right for the life of the husband was in him, and might be taken and sold on execution. Mattocks v. Stearns, 9 Vt. 326 ; Roberts v. Whiting, 16 Mass. 186; Canby’s Lessee v. Porter, 12 Ohio 79.

That the common law estate by the curtesy cannot exist in this state under the statutes now in force, is too apparent for argument. But the estate, under the Revised Statutes of 1846, ivas quite different from that at the common law. It required no birth of issue, and it did not become initiate in the life time of the wife. Hathon v. Lyon, 2 Mich. 93. But in many of its provisions it was as inconsistent with the constitutional provisions and the act of 1855, as was the estate at the common law.

It required joint seizure in husband and wife, in the right of the wife; which has not existed in this state since the act of 1844, except in those cases where the wife’s title had accrued prior to that act, and the husband’s right had then become initiate. It gave from the wife’s fee a life estate to the husband at her death, while the act of 1855, gives the full power to devise the same, “in the same manner and with the like effect as if she were unmarried.”

Its effect was to make the inheritance subject- to the “ debts, obligations and engagements ” of the husband, if he survives her, though the act of 1855, in carefully chosen words, expressly declares that none of her property shall be so liable.

And Ave should be required to hold, in order to support the statutory estate by the curtesy, that the statute, Avhen it declares that the wife’s real estate shall be and remain hers the same as if unmarried, means only that it shall be and remain hers in a qualified and usufructory sense, but subject to haAre a freehold estate carved out of it, for the benefit of the husband or his creditors, to the exclusion of her heirs, although, had she remained unmarried, it would have been subject to no such contingency.

And it would also be necessary for us to hold that the words employed by the Legislature of 1855, apparently chosen with skill to carefully exclude any construction that the wife’s estate in or control over the land is to be any other or different from what it would have been had she remained single, are notwithstanding to be qualified by some implied understanding which attaches to it certain incidents growing out of the marriage relation.

Great as are the changes made by the act of 1855, it does not take from the husband the ■ right to the joint earnings of himself and his wife, by means of which the accumulations during coverture come exclusively to him. Glover v. Alcott, 11 Mich. 470. And it expressly exempts him from' liability on any contract by the wife in relation to her sole property. These facts are not to be ovei’looked when we are endeavoring to arrive at the legislative intent.

The purpose of the act of 1855 to protect the family against the consequences of the husband’s' dishonesty or improvidence, is still more apparent than in the case of the preceding provisions on the same subject. It not only preserved to the wife all her rights in her own property as if she had remained sole, and gave her • full power of control and disposition, but it also supplemented the exemption laws by authorizing her to sue in her own name for property of the husband which the statute had made exempt from levy, sale or mortgage by him without her consent. The homestead provisions, with the like intent, avoid any conveyance of the ' homestead by the husband without the wife’s signature. But these exemptions are from the husband’s own property; and we should hardly expect to find other provisions in force at the same time, which, on the death of the wife, would vest a life interest in her own real estate in him, to the exclusion of the children, if any, and without any check upon his power to dispose either of that or of the personal means of support which the statute so carefully protected against his acts during his wife’s life time.

The question before us we think is disposed of by the positive and unambiguous terms employed in the statute; but it may be well to refer to the few cases which bear upon it. In White v. Zane, 10 Mich. 333, which was a suit between the husband on the one side and the wife’s administrator on the other, for pez-sonal pz’opez-ty of the wife left in the husband’s possession at her death, this court in effect decided that under the statute the wife’s personalty is not simply to “be and remain” her’s during her life time, but that the husband’s common law interest therein was altogether excluded. Decisions upon kindred questions elsewhere are not uniform, and it is perhaps not important to refer to them except as they i-elate to the particular estate in question. In The Junction Railroad Co. v. Harris, 9 Ind. 184, it was held that a statute which declared the wife’s real estate her “ separate property,” free and clear of all claims of the creditors and legal representatives of her husband, as fully as if she had never beezz married, but which, so far as the case shows, did not in terms authorize her to sell or devise the same, did not cut off an estate by the curtesy which had become initiate, and could not constitutionally be made to do so. The statute, it will be pereeived, is quite different from the one we are called upon to construe, and the question was as to its retroactive effect. In Hurd v. Cass, 9 Barb. 366, arising under a statute very nearly like ours of 1855, though perhaps not quite so comprehensive, Judge Mason, sitting in the Supreme Court at special term, held the estate by the curtesy not affected by the statute. To anive at this conclusion the old rule was applied, that a statute in derogation of the common law is to be strictly construed; a most excellent rule when rightly applied, but which has often been employed to torture words into expressing a meaning which was not in them. The case of Hurd v. Cass, was followed by Clark v. Clark, 24 Barb. 581, which was also the decision of a single judge at special term. No case in New Tork has undertaken to consider the question at length, except Billings v. Baker, 28 Barb. 343, which holds curtesy abolished. In the subsequent case of Thurber v. Townsend, 22 N. Y. 517, a decision is made by the Court of Appeals which, as we understand it, overrules the two cases of Hurd v. Cass, and Clark v. Clark supra, and settles the law of New Tork in accordance with the views we have expressed.

The present case does not call for any opinion as to the effect of the constitutional provision we have quoted upon estates by the cui-tesy which had become initiate before the act of 1844, nor as to the state of the law between 1844 and 1855. The descent of the land in question to the wife was in 1855, and her death took place in 1857. We are entirely satisfied that Proctor Tong had no estate by the curtesy in the land, and that on neither point was the demurrer well taken. We think it legally impossible that a woman’s estate should remain unaffected by her marriage, and the husband at the same time acquire by the marriage an estate, either vested, initiate or contingent, in it.

The decree of the court below dismissing the bill must be reversed, the demurrer overruled, and the cause remanded with leave to defendants to answer on payment of the costs of this court and ten dollars costs in the court below.

Campbell and Christiancy JJ. concurred.

Martin Ch. J. I concur in the result.


text:
    Fort Street and Elmwood R. R. Co. v. John Schneider.
    Contract, construction. Under an ordinance of the city of Detroit, the complainants contracted “to pave their railway track (on a certain street) and two feet and four inches on either side thereof, at their own expense — if the city should pave said street cotemporaneously with the construction of complainants’ railway.” The city did so, and having assessed said complainants for the cost of the excavation, as well as the paving, of said portion of said street, it was held that under said ordinance and contract, the complainants were only liable to pay for their proportion of the paving.

      Heard November 9th.

      Decided November 10th.

    Appeal from the Wayne Circuit in Chancery.
    The bill in this case was filed to' restrain the defendant, as City Collector, from collecting a certain assessment made against the complainants, for the expenses of making certain excavations in Croghan street, in the city of Detroit, preparatory to paving the same, and prayed for an injunction.
    The complainants were authorized by a city ordinance accepted by them, to construct a railway on Croghan street. By an amendment to that ordinance, also accepted by them, complainants were obligated as follows, to wit:
    “If the city of Detroit pave Croghan street cotemporaneously with the laying of the track on. said street, said Railway Company shall pave their track on said street, and two feet four inches on either side thereof, at their own expense. ”
    This cotemporaneous paving, the city resolved to do, and did do. The assessment which -was made against the complainants embraced an item for grading and excavating, as well as for paving said portion of said street; and the bill was filed to enjoin the collection of that portion of the tax which was for the grading and excavating.
    The injunction was refused, and the cause was brought to this court by appeal.

      (C. I. Walker, for complainant.

      Wm. Gray, for defendant.
   The Court held, that by the terms of said amended ordinance the obligation to pave, assumed by the complainants, did not include an obligation to excavate with reference to grade, but that the city was to provide for all the work preliminary to the actual paving, and that the injunction should have been granted.

The decree below was reversed, and a perpetual injunction granted in accordance with the prayer of the bill.