author: McAlvay, J.

text:
    BRIGHAM v. REAU. PHEATT v. SAME.
    1. Evidence — Title to Land — Parol Testimony.
    Parol evidence that defendants’ ancestor deeded the premises in suit to defendants, and an unprobated will of such ancestor making no mention of the property, are not admissible to prove title in defendants.

      2. Adverse Possession — Character of Possession.
    Entry under a deed conveying land described as a single tract gives possession-coextensive with the deed.
    8. Tenants in Common — Ouster—Adverse Possession.
    Where a tenant in common conveys the entirety of the property by warranty deed to bona fide purchasers, who go into possession after an examination of the title, and then by like deed convey to others, who go into possession, there is an ouster of the cotenants sufficient to set. the statute of limitations in motion as a basis for title by adverse possession.
    4. Same — Evidence.
    Evidence in a suit to quiet title examined, and held, to show title by adverse possession.
    Appeal from Monroe; Lockwood, J.
    Submitted January 6, 1905.
    (Docket No. 24.)
    Decided March 7, 1905.
    Bills by Charles O. Brigham and Sarah C. Pheatt and others against Isadore Reau and others to quiet title to land and to restrain certain actions of ejectment. Prom decrees for complainants, defendants appeal.
    Affirmed.

      De Forest Paine, for complainants.

      Willis Baldwin and Thornton Dixon, for appellants.
   McAlvay, J.

In these suits complainants filed bills in equity against defendants to quiet title and to restrain an ejectment suit brought by defendant Isadore Reau against the Erie Shooting Club, complainants’ tenant, to recover an undivided one-tenth interest in a part of the land in controversy. The cases were heard on pleadings and proofs taken in open court. The testimony was taken in the Brigham case, and by agreement is accepted as the testimony in the Pheatt case. Prom decrees entered in both cases in favor of complainants granting the relief prayed for, some of the many defendants have appealed.

The land in litigation is described as the east three-quarters of the north half of the southwest quarter, and the northwest quarter of the southeast quarter, of section 15, township eight south, of range eight east, in Monroe county, containing about 100 acres. The north half of this land is the subject of the suit brought by Pheatt and others, and the south half is the subject of the suit brought by Brigham. John B. Reau is the common grantor and source of the record title of all the parties to these suits. John B. Reau acquired title to this property in 1831 and 1853. He died in 1873, without having parted with the title, as far as appears from the records of Monroe county, although it is claimed by complainants that he deeded the property in dispute to his daughters. Ten children survived him, one of whom died without issue. Alexander Knaggs, through whom title of record comes to complainants, acquired title at least from three of the surviving daughters, amounting to a one-third interest. The defendants, except the Erie Shooting Club, all claim as heirs or through heirs of the common grantor. It will not be necessary to designate the relationship of these numerous descendants to their ancestor, nor the share in the premises claimed by each. Suffice it to say that his heirs emulated with success the example of their sire as to the number of children in each family, and altogether claim to represent an undivided two-thirds of the title to the lands. All defendants have not appealed from the decrees of the court below. Those who claim to represent an undivided 34-63 interest are before this court.

On September 7,1874, two of the daughters of the common grantor, Victoria and Margaret, and the children of a third daughter, Matilda, then deceased, describing themselves as “heirs of John B. Reau,” conveyed by quitclaim to Alexander Knaggs the' land in question, described as the north part of the east three-quarters of the southwest quarter, and the north part of the northeast quarter of the southeast quarter, of section 15, in township eight south, of range eight east, and also by metes and bounds as follows: “Bounded on the north by the north half of said section 15, east by the east half of the southeast quarter of said section, south by land of Samuel Mulholland, and west by the west quarter of southwest quarter of said section, owned by Francis Rowe, containing ninty-nine acres, more or less;” and said deed contained the following recital: “This deed is given to correct error in deed from the parties of the first part to said party of the second part, dated April 19,1861, and recorded in the office of register of deeds for said county in Book 62, folio 81.” This deed to Knaggs was duly recorded September 19, 1874. It is claimed by complainants that the daughter of John B. Reau, Julia Pettee, through whom defendant Baldwin claims title, joined in the old deed to Knaggs, which was corrected by the deed of September 7, 1874. Knaggs and (second) wife, by warranty deed June 23,1877, consideration $800, conveyed the north half, or 50 acres, of these premises to Oliver Hall, and on the same date, by warranty deed, consideration $800, conveyed the south half thereof to Charles Dohm. In this deed, by mistake, the whole of the northwest quarter of the southeast quarter of section 15 was conveyed; but Dohm afterwards deeded the north half to Hall. Both of these deeds were promptly recorded. Hall and wife, who claimed to own the fee, by warranty deed, consideration $1,500, on November 28, 1879, conveyed the said north half of these premises to Zebulon C. Pheatt, now deceased.

The complainants in the Pheatt case are the widow and sole heirs of said Zebulon O. Pheatt. Charles Dohm and wife, who claimed to own the fee, by warranty deed, consideration $1,400, conveyed the south half of said premises to Mary L. Brigham December 3, 1879, who, May 15, 1901, by warranty deed, consideration $1, conveyed the same to her husband, Charles O. Brigham, complainant. Brigham and Pheatt in 1879 went into possession of the lands purchased by them and made large improvements. They built a dyke, cut a ditch, put up a windmill, and planted a peach orchard on the higher land. As to whether this was an absolute possession of the entire premises will be considered later. It is conceded in both cases that the possession of complainants as to all but the N. W. £ of the S. E. £ of section 15 has been adverse as to all the defendants, and all claim to the other description is abandoned.

The contention of complainants is that possession of the entire premises by them and their grantors since September 7, 1874, has been adverse, hostile, and exclusive, visible and notorious.

- A claim is also made that the common grantor deeded these premises to his daughters, who conveyed to Alexander Knaggs; and a paper purporting to be a last will and testament of John B. Beau, which disposed of other lands, and not mentioning these, and some other writings, were offered to sustain such claim. For the purpose of showing title such proof was not competent. Other evidence, however, showing how this land was treated by the members of this family, and their understanding as to whom it belonged, was properly considered as bearing upon their subsequent conduct.

Brigham and Pheatt were charter members of the Bay Pointe Shooting Club, organized in March, 1879, and upon its organization leased the 40 acres now in dispute to the club, which at once went into possession and placed signs on the northwest corner and down the west side, reading as follows:

The Erie Shooting Club succeeded to the possession of the Bay Pointe Club, and like signs were posted by it, and it has continued its possession up to the present time.

We do not think that it appears from the record that title to this land was in the daughters of John B. Reau. The bills of complaint do not plant the case upon such title based upon a lost deed, nor is there sufficient evidence to establish a lost instrument conveying the property to them. The cases must be determined, then, upon the nature of the possession of complainants.

Defendants contend that complainants were in possession as tenants in common with them. The answers of all of the defendants to the bills of complaint in both cases are based solely upon the ground of ownership of an interest in the land and joint occupancy of the same with complainants, and claiming that complainants’ remedy is at law.

The record shows that Knaggs went into possession under the deed of September 7, 1874, about the beginning of the year 1877, and cultivated part of these premises, and pastured his cattle on the 40 acres in dispute. It is also shown that this deed to him was to correct an error in a deed from the same parties to him, dated April 19, 1861. It does not appear that under the old deed he was ever in actual possession. Knaggs deeded to Dohm and Hall, and they to complainants, so that whether or not the possession of complainants has been exclusive and hostile as to defendants, it has been actual, continuous, and open.

The question is raised as to whether the possession of the complainants and their grantors has extended to the 40 acres in dispute, and whether such possession has been exclusive and hostile. The description in the deed to Knaggs, September 7, 1874, which can be considered good as conveying all of this land, is a description by metes and bounds. The description by sectional subdivisions is indefinite and uncertain. It is as follows:

“ The north part of the east three-quarters of the southwest quarter, and the north part of the northeast quarter of the southeast quarter of section 15.”

The land could not be surveyed or set off by this description, and no part of the northeast quarter of the northeast quarter of this section is claimed by any of the parties to these suits. The portion in dispute is the northwest quarter of the southeast quarter of section 15. The other description is as follows:

“Bounded on the north by the north half of said section 15, east by the east half of the southeast quarter of said section, south by land of Samuel Mulholland, and west by the west quarter of the southwest quarter of said section, owned by Francis Rowe, containing 99 acres, more or less.”

The accompanying diagram of the section, which is a copy of a part of an exhibit in the case, and admitted to be a correct outline of the premises, if used in applying this description, shows that the premises are described with reasonable certainty, except on the south side, which requires extraneous evidence to show the Samuel Mulholland land. The land came to Knaggs as one description. He occupied and cultivated. that part in the southwest quarter of the section. He deeded to Hall and Dohm, using sectional subdivisions to describe the land. These descriptions were used by them two years later, when they deeded to Pheatt and Brigham. They bought the lands for the special purpose of improving them. This was a joint enterprise while it continued. The description in dispute was leased by them in 1879 to the Bay Points Shooting Club, which occupied until 1889, when the Erie Shooting Club succeeded by lease to its rights. The possession and occupancy by Knaggs under this deed and the proofs in the case must be considered as a possession and occupancy of the whole premises conveyed to him by one description, and, as far as his possession is concerned, it is not necessary to invoke or discuss the rule of constructive possession. The premises were described in his deed as a single tract, and his entry, when made, gave him possession coextensive with the deed. After the transfers were made to Dohm and Hall, the lands were farmed and pastured until the purchase by Pheatt and Brigham. They exercised possession over the whole property, actually cultivating the larger piece and renting the disputed portion to the shooting clubs. The possession of these plubs under them was of such a nature 'that no constructive possession need be claimed. If it were necessary, the deed to each of the 50 acres of land, as two distinct parcels, where it appears they had theretofore been used together for farming purposes in raising crops and pasturing cattle, and were adapted to such uses, the entry upon and improving the larger portion would be constructive possession of the other.

The defendants claim that the statute of limitations has not run against them; that the possession of complainants has been their possession. It is probably true that the possession of Knaggs as against his children by his first wife, who was one of the heirs of John B. Beau, would not be adverse; but from the proofs in this case we hold that Dohm and Hall, being bona fide purchasers by-warranty deeds conveying the .entirety of the premises to them for value, going into possession as they did after examining the title, under those deeds claiming to be sole owners of the fee, and transferring the title by like deeds to Pheatt and Brigham for valuable consideration after they had been diligent in examining the title, transferred to Pheatt and Brigham a title and possession upon which they might rely and assert as the foundation of an adverse holding against these defendants, and under which the statute would begin to run. We hold that under the circumstances of this case the entry of Pheatt and Brigham in December, 1879, operated as an ouster of all cotenants. They went into possession as strangers to the interests of the other tenants, and under claims which denied their existence and validity. Campau v. Dubois, 39 Mich. 274; Sands v. Davis, 40 Mich. 14; Watkins v. Green, 101 Mich. 493; Fuller v. Swensberg, 106 Mich. 305.

The statute of limitations having begun to run against defendants as cotenants of complainants at least as early as December, 1879, unless the same has been suspended by actual entry on their part or acknowledgment of their claims by complainants, sufficient time had elapsed prior to the ejectment suit by Isadore Beau and the filing of the bills of complaint in these cases to bar defendants’ rights in the premises. The proofs are quite extensive upon this question. As a matter of law, if the acts and conduct of any of these defendants amounted to an entry into possession of these premises, and an occupation thereof jointly with complainants, such entry and possession would suspend the running of the statute, and would inure to the benefit of all tenants in common. A very careful examination of all evidence does not satisfy us that any such entry or joint possession has been shown. The discovery that John B. Beau had not parted with his title was in the nature of a surprise to his sons Christ and Francis B. They took no affirmative action, and in leasing assumed no responsibility as owners. The sister, Julia B, Pettee, 84 years old at the time of hearing in the court below, had joined in the deed of 1861 to Alexander Knaggs. She testifies that all the lands between the portions given to Christ and Francis B. Reau and the lake belonged to the girls. When the lands were divided it was given to them by their father as their share. The presumption is strong that this was with, the knowledge of the whole family. She refused to sell any land included in the transfer to Knaggs, but was induced, upon certain representations made by defendant La Pointe, to transfer part of the land described in the deed to Knaggs to defendant Baldwin. All of these defendants had resided for years contiguous to, or in the vicinity of, this land. All knew of the Pheatt and Brigham occupancy of the larger piece. The occupancy by the shooting clubs for all the years since 1879 by posting of notices around this land and keeping watchmen was open, adverse, and inconsistent with the rights of defendants. We agree with the learned circuit judge that the evidence in the case clearly establishes title in the complainants and their grantors by adverse possession.

The decrees of the court below in both cases are affirmed, with costs.

Moore, C. J., and Grant, Blair, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    STONE v. PONTIAC, OXFORD & NORTHERN RAILROAD CO.
    1. Equity — Parties—Stockholders’ Bill.
    Stockholders who are alleged to have participated in the wrongful acts complained of are proper parties to a stockholders’ bill against the corporation and its officers and stockholders, though no specific relief against them is prayed.
    2. Same — Multifariousness—Misjoinder of Complainants.
    A stockholders’ bill, alleging violation of a contract with complainant S., and praying that one of the officers be required to account for official’ misconduct, that the officers refund certain unauthorized salaries, that certain unauthorized dividends be refunded, that certain acts of the directors be set aside, and that a receiver be appointed, is not multifarious because it joins with S. certain stockholders whose interests in the corporation were acquired after the making of such contract with S.
    3. Same — Bills—Multifariousness—Matters Considered.
    Though the prayer of a bill is not controlling in determining the question of multifariousness, it is to be considered.
    4. Same — Remedy at Law. 4
    That the violation of a contract with complainant is one of the wrongful acts complained of does not relegate complainants to their remedy at law.
    5. Same — Multifariousness.
    A bill is not rendered multifarious by introducing averments of fact and a prayer for relief based thereon to which complainant is not entitled.
    Appeal from Oakland; Smith, J.
    Submitted January 17, 1905.
    (Docket No. 59.)
    Decided March 7, 1905.
    Bill by Charles H. Stone, individually and as executor of the last will and testament of ■ Augusta W. ‘Stone, deceased, and others, against the Pontiac, Oxford & Northern Railroad Company and others for an accounting, and for the appointment of a receiver. From an order overruling demurrers, defendants appeal.
    Affirmed.

      Angelí, Boynton, McMillan & Bodman (Howard Mansfield, of counsel), for complainants.

      John H. Patterson and Henry M. Campbell, for defendants.
   Montgomery, J.

This is an appeal from an order of the circuit court, in chancery, of Oakland county, overruling demurrers separately by the railroad company and by the individual defendants Sanford and Carroll.

It is difficult to state the contents of the bill within reasonable limits without incurring the risk of omitting matter deemed material by counsel, but we think the salient features may be stated as follows: Complainants are stockholders in the defendant corporation. All the stock held by them was derived by complainant Stone, either as an individual or in a representative capacity, by virtue of a contract signed June 19, 1902, by all of the defendants except Margaret Porter, W. C. Sanford, and Frank H. Carroll. This contract provided, amongst other things, that 4,000 shares of stock in defendant company should be placed in escrow with a trust company named, and that unless prior to the 5th of January, 1903, the sum of $280,-000 should be paid to complainant Stone, the stock should be delivered to him, and that in the meantime no act should be committed which would impair the value of the stock. The bill alleges unlawful and unauthorized acts of the defendant Hugh Porter and other defendants which in this interim did impair the value of the stock. The bill also alleges prior and subsequent maladministration of the affairs of the company by defendant. The bill prays that defendant Porter account for his official misconduct, that defendants Porter and O’Brien be required to refund certain unauthorized salaries drawn by them under the pretended authority of a vote of the board of directors which was without validity, that the amount of a dividend declared without lawful authority be refunded, that certain illegal acts of the board of directors be set aside, and that the affairs of the corporation be wound up through a receiver. There was also a prayer for general relief.

The defendants Sanford and Carroll interposed a separate demurrer, on the ground that it appears by the bill that they have no interest in the matters set forth in the bill. The demurrer of the railroad company rests upon two grounds: First, that the bill is multifarious; and, second, that complainants have an adequate remedy at law.

As to the demurrer of the defendants Sanford and Carroll, the bill alleges their participation in the wrongful acts charged, and, notwithstanding the fact that no specific relief is charged against them, we think they are proper parties to the bill.

The claim is made that there is a misjoinder of complainants, inasmuch as complainant Stone seeks relief for the violation of the agreement of June 19, 1902, and complainants Barbour and Sells rest their claims on their ownership of stock acquired January 5, 1903. No different question is presented by this contention than that which is involved in the main issue, which is whether this is a bill to enforce the contract of June 19,1902, in any such sense as is claimed by defendant. If such is the purpose of the suit, it may follow that the bill is multifarious, and that the demurrer should be sustained on this ground. We are, however, upon full consideration, agreed that the bill should not be so read.

It is true the contract is set out, and in the view of complainants this was certainly proper, if not essential, as showing the relations of complainants to the stock, and as showing that complainants from the date of such contract had an equitable interest in the 4,000 shares of stock, or, at the least, that they occupied such a position with reference thereto that defendants are not in position to assert that the present holders of that stock are estopped from asserting the misconduct of defendants and predicating a claim for relief thereon. That the averments of the contract are introduced for this purpose is evidenced by the prayer, and, while the prayer is not controlling in determining the question of multifariousness, it is to be considered. 14 Enc. PI. & Prac. 203.

The same considerations furnish an answer to the con-. tention that complainants should seek their remedy at law.

It is also contended that the bill challenges transactions which preceded the settlement of June 19, 1902, and which were adjusted by that settlement; that, if complainants seek to occupy the position of stockholders, they must accept the condition of the company as it existed at that time; and that the introduction of these averments renders the bill multifarious.

If the defendant is right in asserting that complainants are not in position to question the dealings of the individual defendants with the corporation which occurred prior to June, 1902 (a point which we do not decide), the bill is not rendered multifarious by introducing such averments, or prayer for relief to which complainants are not entitled. 1 Daniell’s Chancery PL & Prac. 346, note; 14 Enc. Pl. & Prac. 205.

Our conclusion is that the demurrers were properly overruled. The order will be affirmed, with costs, and the cause remanded.

McAlvay, Geant, Blaib, and Ostbandeb, JJ., concurred.


text:
    CUMMINGS v. DIXON.
    1. Municipal Corporations — Streets—Change in Grade — Dam-
    ages to Adjacent Property.
    In the absence of a statute giving a right to recover therefor,, damages suffered by an adjacent property owner because of a change in the grade of a street cannot be recovered.
    2. Same.
    Under the general village law (§§ 2783, 2784,1 Comp. Laws), a property owner is entitled to damages for the change in a street grade only when the prior grade in conformity to which his improvements were made was established by competent municipal authority in the prescribed manner.

    Error to Montcalm; Davis, J.
    Submitted January 18, 1905.
    (Docket No. 72.)
    Decided March 7, 1905.
    Trespass quare clausum fregit by Edward C. -Cummings against Thomas T. Dixon and another. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Nims, Hoyt, Erwin, Sessions & Vanderwerp (L. A. Lyon, of counsel), for appellant.

      A. B. Goodwin and.Chaddock & Scully, for appellees.

       A.s to damages to abutting owner by first grading of street, including question what is regarded as establishing a grade, see note to Hickman v. Kansas City, (Mo.)23 L. R. A. 658.

   Montgomery, J.

This case presents a question of great importance to municipalities. The action is brought in trespass against the president and street commissioner of the village of Carson City to recover damages sustained by plaintiff by excavations made in Main street, in said village, to make the grade conform to the grade established by the village authorities by regular action taken in the year 1900. The plaintiff’s contention is that the action taken to establish this grade was unlawful, and wholly ineffectual, for the reason that it constituted an attempt to change a previously established grade without first making compensation to the plaintiff, who had made valuable improvements upon his property relying upon the existing grade.

The facts are not in dispute. The street in question had existed as a highway for many years. In 1887 the village of Carson City was incorporated. The road had been previously worked by township authorities. In 1887-88, after the incorporation of the village, some steps were taken looking to the establishment of a grade, but these proceedings are conceded to have been irregular, and to have lacked both formality and finality. A curb line was established, and a curb built; the street was worked and graded; but the requirements of the charter were not observed. The plaintiff thereafter built a building upon his property, and claims to have suffered damages by reason of the grade of 1900 having provided for a cut in front of his premises of from 12 to 20 inches.

By the terms of Act No. 3, Pub. Acts 1895, providing for the incorporation of villages, all villages theretofore incorporated under general or special laws were reincorporated under said act of 1895. Section 15, of chapter 7, of this act, being 1 Comp. Laws, § 2783, reads as follows:

“The council shall have authority to determine and establish the grade of all streets, avenues, alleys, and public grounds within the village, and to require improvements and buildings, adjacent to, or abutting upon, such streets, alleys, or grounds to be made and constructed in conformity with such grade; and the council may change Or alter the grade of any street, alley, or public ground, or of any part thereof whenever in their opinion the public convenience will be promoted thereby. Whenever a grade shall be established or altered a record and diagram thereof shall be made in the book of street records in the office of the clerk.”

The succeeding section provides:

“Whenever the grade of any street or sidewalk shall have been heretofore or shall hereafter be established, and improvements shall thereafter be made by the owner or occupant of the adjacent property in conformity to such grade, such grade shall not be changed without compensation to the owner for all damages to such property resulting therefrom.”

The question presented is, When is a grade to be said to have been established, within the meaning of this last section ? The contention of the plaintiff is that a grade is established when, by long user, it has become fixed, and .when improvements have been made by the village authorities on a certain grade. The defendant, on the other hand, contends that, before such grade can be said to be established, legal action by the constituted authorities must have been had. If acting under the present law, this action must have been by the common council; if under the previous charter, equally' formal action was required.

The question presented is not free from difficulty, nor can it be said that authority is wholly lacking to sustain plaintiff’s contention; but in construing and applying such authorities care must be taken to consider the peculiar wording of the statutes under consideration in each, as well as the attitude of the court upon the question of liability of the municipality for a change of grade in the absence of statute.

It is to be kept in mind that it is fully settled by our adjudications that, in the absence of a statute "giving a right to recover therefor, damages suffered by an adja^ ■ cent owner by reason of a change in grade cannot be recovered for. City of Pontiac v. Carter, 32 Mich. 164. Cases which make for a different rule cannot be of aid in solving the question before us. Of this class are Smith v. Commissioners, 50 Ohio St. 628, and Borough of New Brighton v. Presbyterian Church, 96 Pa. St. 331; the former having been determined upon common-law principles and being plainly in conflict with our own decisions, and the latter having been rested upon the terms of the State Constitution. In McGar v. Borough of Bristol, 71 Conn. 652, it was held that a change from the natural grade was a change from a “well-settled” grade. The case does not deal with the question before us. Folmsbee v. City of Amsterdam, 142 N. Y. 118, sustains the plaintiff’s contention, and holds that a grade may be established within the meaning of a statute similar to ours by user. On the other hand, in the well-reasoned case of Kepple v. City of Keokuk, 61 Iowa, 653, a provision in all essential particulars corresponding to our statute was construed, and it was held that the word “established” should be construed with reference to. the well-understood manner in which the grade of streets is established.

It is pointed out that when the statute is followed the owner of property may, by reference to the record, ascertain the grade, and know where the surface will be when brought to that grade, and build with reference to it. In City of Valparaiso v. Adams, 123 Ind. 250, a statute was considered which gave a right to damages when there was a change of grade after the “city authorities have once established the grade.” It .was held that until proceedings are had by the common council directing that the grade of a certain street be established, or that the grade of a street already established be approved and adopted in some authoritative way, it cannot be decreed that the city authorities have ever established the grade of the street within the meaning of the statute; citing Mattingly v. City of Plymouth, 100 Ind. 545. We think the general understanding accords with the holding in Kepple v. City of Keokuk, supra. The establishment of a grade of a street takes place when corporate action is had to that end, and this usually — if not necessarily — is a matter of definite record. Larned v. Briscoe, 62 Mich. 393. The establishment of the grade may, and usually does, precede actual grading of the street, and it is a fact of some significance that the adjacent owner may make his improvements to conform to the established grade at once it is established. The term is to be construed in connection with the preceding section, and with reference to the authority vested in the council under its prior charter. So construed, we are satisfied that the legislature did not intend to so far depart from the common law as to give a right to recover damages except in case of a change from a grade deliberately established by competent municipal authority in the prescribed manner. The circuit judge held this opinion, and directed a verdict for defendant. The judgment entered on that verdict is affirmed.

Me Alva y, Grant, Blair, and Ostrander, JJ., concurred.


author: Hooker, J. Hooker, J.

text:
    LEVER v. GRANT
    1. Dedication — Intent—Reservations.
    Land was platted along a street of half width which had been dedicated by the owner of the adjoining plat, the dedicator reserving as a private right of way the strip necessary to complete the street of full width. The plat showed the strip marked “Private Way.” The circumstances indicated an intention to reserve title to the strip in the dedicator in order that he might receive compensation when it should be condemned for widening the street. Held, that the fee to the strip was reserved to the maker of the plat and the lot owners were given access to the street over it.

      2. Taxation — Appurtenances—Owner op Fee.
    The fee of a strip of land which the maker of a plat reserves as a private way is properly assessable to him, though the lot owners have a right of way over it as an appurtenance to their lots which is assessed to them as a part of the value of their lots.
    3. Easements — Termination—Sale op Servient Estate.
    An easement appurtenant to certain lots on a plat is terminated by a sale by the plat maker, before sale of the lots, of his interest in the servient estate. '
    ON MOTION POR REHEARING.
    Taxation — Deed—Epfect.
    Under section 173 of the charter of Detroit (1893), a tax deed is prima facie evidence of the regularity of all the tax proceedings.

      Appeal from Wayne; Mandell, J.
    Submitted February 9, 1905.
    (Docket No. 130.)
    Decided March 7, 1905.
    Rehearing denied June 8, 1905.
    Bill by Elmer T. Lever against Archibald Grant to restrain an obstruction of an alleged right of way. From a decree for complainant, defendant appeals.
    Reversed.

      John W. McGrath, for complainant.

      John J. & Robert T. Speed, for defendant.
   Hooker, J.

On February 81, 1884=, one Hibbard Baker platted certain land including a public street called “Custer Avenue,” which was upon the extreme north side of the plat. It was only one-half of the width of the. street at other points. Subsequently, and upon March 87, 1885, Hamlin & Brown, owners of land north of and bordering upon this portion of Custer avenue, made a plat of such land. The diagram includes so much of both plats as is necessary to show the situation:

The dedication of the Hamlin & Brown plat was shown by the following language upon the plat:

“ And we do hereby dedicate to the perpetual use of the public the streets and alleys as shown thereon, reserving to ourselves, our heirs and assigns, the reversion or reversions thereof whenever discontinued by law, excepting the north 30 feet of Custer avenue, which we reserve as a private right of way. Witness,” etc.

Sales were made by Hamlin & Brown of many of the lots in their plat before 1890, and most of the others after-wards. The plat shows a strip of ground 30 feet wide adjoining Custer avenue on the north, marked “Private Way.” The three most westerly lots front Woodward avenue and the southerly one is owned by the defendant, while the complainant owns the first lot east of an alley, by which it is separated from defendant’s parcel. The defendant has fenced in that portion of the land marked “ Private Way ” which lies south of his lot, and complainant’s bill is filed to compel him. to remove this fence. Complainant prevailed in the circuit court, and defendant has appealed.

The. defendant claims to own the parcel inclosed in fee. It was assessed for city taxes for the year 1890, and duly sold and bid in by defendant for delinquent taxes for that year, and defendant obtained a city tax lease thereof for 99 years. Again, on the 13th of March, 1894, Brown conveyed to Hamlin this parcel, and he in turn deeded it to the defendant on the same day. Immediately thereafter defendant fenced the land.

Complainant’s parcel was deeded to him as lot 300, according to the plat, by a grantee of Hamlin & Brown, who bought of them in 1899. The complainant claims that the effect of the plat was the dedication of this private right of way, throughout its entire length, as an appurtenance of the several lots in the addition. Defend^ ant, on the other hand, contends that the private way was reserved in fee to the persons who made the plat, and that he has acquired their title through the tax deed and other deeds referred to. At the time the Hamlin & Brown plat was made, the land proposed to be platted was bounded upon the south by a street (Custer avenue) of half width, dedicated the year before by the Hibbard Baker plat. To make it a Street of the usual width, it was necessary to take land belonging to Hamlin & Brown. Apparently they were unwilling to dedicate this land, perhaps for the reason that it would have been without compensation. The plat shows what they did, and we must determine its effect upon the title.

It is a reasonable supposition that there was an intention to keep this strip of land with a view to its ultimate condemnation for widening Custer avenue. If this is so, it is reasonable to say that they undertook to reserve this title to themselves, so that they would receive the compensation when it should be condemned. If it was intended to convey the fee to the prospective purchasers of the lots, the proprietors might as well have dedicated the street to the public, for it is improbable that they reserved a right of way for themselves merely, when a public street would do as well, or that they intended to convey a fee to subsequent purchasers as a gratuity. We are therefore of the opinion that this plat indicates a reservation of the title in fee to the makers of the plat, and that it was the intention of the owners to give the lot owners access to Custer avenue over this land. It may be that its effect was to give all purchasers of lots a right of way over the entire strip. That, however, is not an important question here, for it cannot affect the result. The strip being reserved in fee by the owners of the land, it was subject to taxation like other land. The plat shows that it was not a part of the respective lots. At the most it was an easement appurtenant to them. If it be said that such appurtenance was included in the assessment of a lot, it still left the fee to be assessed to the true owner and this was presumably done. Being sold for taxes to the defendant, he acquired all of the estate that was assessed, if the proceedings were regular. They are not before us, and we do not pass upon the effect of this tax deed, it being unnecessary to a disposition of. the cause.

It clearly appears that in 1894, while Hamlin & Brown still owned the premises now claimed by the complainant, they sold to the defendant’s grantor their interest in the parcel involved here. This must have deprived the lots then owned by them of an appurtenant easement. If not, it is not apparent how it could be done. We conclude, therefore, that, although purchasers of lots from Hamlin might, under the terms of their deeds, have an easement over this entire strip (which we do not decide) by reason of the sale with reference to the plat, such right would depend upon the grantors’ ability to convey such easement, which they could not do in this case, because they had already parted with all interest in the land.

We are therefore constrained to reverse the decree and dismiss complainant’s bill, with costs of both courts.

Moore, C. J., and Carpenter, McAlvay, and Grant, JJ., concurred.

ON MOTION EOR REHEARING.

Hooker, J.

This cause was decided upon the assumption that the complainant’s rights to relief (if he would otherwise have had any) were cut off by a deed from his grantor prior to his conveyance to him. It now appears by stipulation of counsel that said deed was subsequent to the time that he acquired title. A rehearing is asked in view of this correction. This makes it necessary to consider the effect of the tax deed under which the de-, fendant claims title. No question is raised over the regularity of the tax proceedings, which are not included in the record. But the tax deed, which was offered in evidence, is prima facie evidence of the regularity of all of the proceedings (see Detroit charter [1893], § 173), and we must hold therefore that the complainant is not entitled to the relief asked in his bill.

The rehearing is denied.

Moore, O. J., and Carpenter, McAlvay, and Grant, JJ., concurred.


author: Grant, J.

text:
    FROHLICH v. BEECHER.
    Mechanics’ Liens — Statement oe Claim — Failure to Fur-
    nish — Forfeiture.
    A lienor who fails to furnish the owner with the statement of his claim, provided by section 10717, 3 Comp. Laws, within five days after demand, forfeits his lien, though the owner is not prejudiced.
    Appeal from Wayne; Donovan, J.
    Submitted February 10, 1905.
    (Docket No. 140.)
    Decided March 7, 1905.
    Bill by Edward Frohlich against George L. Beecher and Charles B. Ward to enforce a mechanic’s lien. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    The object of this bill is to enforce a mechanic’s lien, under chapter 396, 3 Comp. Laws. Defendant Beecher was the owner of the premises on which the building was erected. He made a contract with defendant Ward, giving him (Ward) the exclusive control of the lands, with the privilege of selling them and erecting such a house thereon as the purchaser might require. The contract covered other lots besides the one here in controversy. Beecher was to advance money at his own discretion for the purpose of building the house. At the time the lien was filed, Ward had assigned to Beecher all his right and interest in the property. Complainant had a contract with Ward “to get out the sash, doors, and inside finish according to specifications and instructions given by him, and was to receive a lump price for the entire work covered by the bid.” Subsequently Ward gave complainant an order for glass, and another for paint. Ward became embarrassed financially, and temporarily disappeared. Complainant then filed a claim of lien. Immediately after serving notice upon the defendant Beecher of his claim of lien, Mr. Beecher, through his attorneys, demanded an itemized account, under section 8 of the lien law (section 10717, 3 Comp. Laws). No itemized account was received until about 10 months afterwards. Issue was duly joined, proofs taken, and the petition dismissed.

      Wilkinson & Younglove, for complainant.

      Gray & Gray, for defendant Beecher.
   Grant, J.

{after stating the facts). Section 8, above mentioned, provides:

“Each person claiming a lien as aforesaid shall, from time to time, whenever required by such owner, part owner, or lessee, or his agent, and within five days from demand thereof, furnish such person demanding the same, a written statement of the amount of work and materials furnished to date of statement, and then unpaid, as nearly as can then be ascertained, under penalty of a forfeiture of his lien.”

It seems conceded that the above clause has never been construed by this court. The lien is created solely by the statute, and there must be a substantial compliance with its provisions in order to secure and maintain it. The law expressly requires the claimant to furnish a written statement of the work and materials which are the basis of his claim within five days after demand, and upon failure to serve such statement the lien is lost. The legislature can attach any requirements and provide any penalties it chooses to statutes of this character. It has very properly ■ and in unmistakable language required the service of this written statement when demanded. In equally unmistakable language it has provided that the penalty for failure shall be the loss of the lien. It is no reply to this to say that the landowner has not been prejudiced by the failure to comply with the statute. The claimant cannot excuse his failure to comply with the plain requirements of the law by raising that issue for the court to determine. The law does not provide for any such issue. The case is within the principles of Sterner v. Haas, 108 Mich. 488.

The decree is affirmed, with costs.

Carpenter, McAlvay, Montgomery, and Hooker, JJ., concurred.


author: Hooker, J.

text:
    FORBES v. CITY OF DETROIT. FREUD v. FORBES.
    1. Nuisances — Encroachment on Street — Abatement—Suit by Private Person.
    Show cases and bays, extending along the whole front of a building and upwards of two feet into the street, constitute a nuisance which an adjoining owner specially injured may maintain suit to abate.
    2. Licenses — Occupancy of Street — Revocation.
    Where a city council gives an abutting owner permission to oocupy a portion of the street by show cases and bays, expressly reserving the right to remove them at any time, the revocation of the license will not be enjoined though the owner will sustain considerable loss thereby without fault on his part.
    Appeal from Wayne; Brooke, J.
    Submitted February 10, 1905.
    (Docket Nos. 141, 142.)
    Decided March 7, 1905.
    Bill by Jeannette Fisher Forbes against the city of Detroit and D. W. H. Moreland, commissioner of public works, to restrain the revocation of a building license. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    Bill by Leopold Freud against Jeannette Fisher Forbes to abate a nuisance. From a decree for complainant, defendant appeals.
    Affirmed.

      Ransom G-. George {C. D. Joslyn, of counsel), for appellant.

      Keena, Lightner & Oxtoby, for complainant Freud.

      Timothy E. Tarsney {John W. McGrath, of counsel), for defendant city.
   Hooker, J.

Mrs. Forbes was for many years the owner of a triangular lot situate at the junction of Lafayette and Michigan avenues, in the city of Detroit. Upon this lot was a building the walls of which were built upon the street line. This building did not extend to the point of the triangle, but the space not occupied by the building was covered by stone steps, which extended beyond the lot limits at all points. There were also areas under the sidewalks of both streets with steps downward, outside the building, and in one place the walk was raised several inches, to accommodate a steam boiler in the area used for heating the building.

Mrs. Forbes, having a chance to rent, provided she would make improvements to the building, including show cases or bay windows to extend over the sidewalks, asked the council for the privilege, and procured a consent, best shown by the records of the council. At this time there were some show cases in the street at the Majestic Building. The subject of Mrs. Forbes’ application was referred to a committee, and the following report was made, viz.:

“To the Honorable the Common Council.
Gentlemen: Your committee on streets, to whom was referred the resolution presented by Aid. Joy, granting permission to Edwin B. Forbes to construct permanent show cases and bays on both sides of the Dime Savings Bank Building, respectfully reports that we have carefully considered same, aDd find that said resolution provides for the construction of permanent show cases, to which your committee is unanimously opposed. We understand since the resolution, was presented that it is the object of the owners of the building to take away the big stone stairway in front of the main entrance, as well as the small stone steps on Lafayette and Michigan avenues; also to close up the passageways and areas that are now built along each side of the building, if they are given permission to construct show cases and bays on the Lafayette and Michigan avenue sides of this building, the work to be done under the supervision of the department of works, and so forth, subject to removal at any time when directed by the common council. Your committee can see no objection to the granting of this request, as we believe it will be a vast improvement over the present appearances, and we therefore, offer the following resolution. ”

The resolution, which was adopted, is as follows:

Resolved, that the department of public works be and is hereby authorized to issue a permit to Edwin B. Forbes to construct show cases and bays on both sides of the Dime Savings Bank Building, at the intersection of Lafayette and Michigan avenues: Provided, however, that said Forbes removes said areas and passageways on said building, and also removes the stone steps at the entrance thereof and those located on the Lafayette and Michigan avenue sides; and further provided, that said work shall be performed under the supervision of the department of public works and in accordance with the plans submitted to and approved by the department; and provided, further, that no rights in the public street shall be considered waived by this permission, which is granted expressly on the condition that said show cases and bays and all obstructions in connection therewith shall be removed at any time when so directed by the common council.”

Mrs. Forbes claims that the consideration for the permission was the removal of all previously existing encroachments upon the street.

Mrs. Forbes proceeded to build bay windows on both fronts, extending into the streets two or three feet, and covering nearly the whole of the lower story, on both fronts. Before they were completed one of the aldermen called the attention of the council to the magnitude of the encroachment upon the streets, and the permanent character of the work that was being erected; whereupon the council by resolution revoked the permit theretofore granted, and directed the board of public works to remove the obstruction to the streets, if not removed by Mrs. Forbes within 10 days. Notice of this action was served, whereupon she filed a bill to restrain such action, upon which a temporary injunction was issued against the city, and she proceeded with the construction of the windows. About the samé time Leopold Freud, who occupied the adjoining building, filed' a bill against Mrs. Forbes to abate an alleged nuisance, consisting of the windows which were near to his front door.

Upon the hearing of these causes, which we understand were heard together, the court dismissed Mrs. Forbes’ bill against the city, and granted a decree as prayed in the bill of Freud. Mrs. Forbes has appealed both cases, and they have been heard together in this court.

We are of the opinion that the encroachment upon the street was a nuisance, which specially affected and injured Freud, thereby giving him the right to ask that it be abated.

The express terms of the license give the right to the city to terminate it at will, and although it would have been better for Mrs. Forbes had the council not granted it in the first place, thus preventing her from the loss that she will suffer by its revocation, that cannot deprive the city of its reserved right, even if its power to grant the privilege be unquestioned. The action of the council is perhaps subject to some criticism, for the failure to fully understand and limit the proposed improvement in the first instance; but there is .no indication of bad faith, and it is commendable that action was taken as soon as the misunderstanding developed, instead of pormitting more expense to be incurred. There is a manifest propriety in denying the privilege of encroachment upon streets. While Mrs. Forbes is a sufferer without apparent fault upon her part, we see no way of relieving her.

The decrees must be affirmed.

Carpenter, McAlvay, Grant, and Montgomery, JJ., concurred.


text:
    VOIGT BREWERY CO. v. PACIFICO.
    1. Parties — Amendment—New Plaintiff.
    Where an action is begun in a name that imports a limited partnership, an amendment is not allowable which introduces an individual trading under that name.
    2. Same — Failure to Name Plaintiff — Plea in Abatement.
    Naming a limited partnership, which in fact has no existence, instead of the individual trading under that name, is not a misnomer, but a failure to name the true plaintiff, which is fatal upon trial, though not pleaded in abatement.
    Error to Wayne; Hosmer, J.
    Submitted February 10, 1905.
    (Docket No. 134.)
    Decided March 7, 1905.
    Summary proceedings by the Voigt Brewery Company, Limited, against Louis (Luciano) Pacifico to recover the possession of a certain building. There was judgment for defendant on verdict directed by the court, and complainant brings error.
    Affirmed.

      Bowen, Douglas, Whiting & Murfin, for appellant.

      James H. Pound, for appellee.
   Hooker, J.

Chester, the owner of a tenement in Detroit, leased it from month to month to Pacifico, a saloon keeper. Pacifico purchased beer of the Mutual Brewery Company of Detroit, and was indebted to it for money advanced to pay his license as a saloon keeper. Mr. Voigt was a brewer doing business under the name of the Voigt Brewery Company, Limited; and in June, 1903, an agent of Voigt (one Preetz) induced Pacifico to sell Voigt’s beer. It was agreed that Voigt should lease the place of Chester, fit up the saloon with better' fixtures, and advance Pacifico some money. Chester was to indorse a note therefor, and should receive $32 per month from Pacifico for rent, and he (Pacifico) should sell the Voigt beer. Voigt took a lease from Chester, running to the Voigt Brewery Company, Limited; and Pacifico signed a note for $416, in which Chester was payee, which, being indorsed in blank by Chester, was handed over with the lease to Voigt’s agent. These papers were executed and delivered at a meeting of all the parties. Pacifico remained in the premises, but a few days later concluded not to sell Voigt’s beer, refused to receive the fixtures, repudiated the arrangement, and refused to pay rent to Voigt. Thereupon Voigt caused a notice to quit to be served. This notice was signed, “The Voigt Brewery Co., Limited.” The foregoing is the substance of the complainant’s evidence. No testimony was offered by the defendant, and the court directed a verdict for the defendant upon motion, the ground of which was that the evidence showed that there was no party complainant before the court, in whose favor a judgment could be rendered.

When this motion was made, counsel for the complainant stated that this question was not raised upon the trial before the commissioner, and asked leave to amend the process to make it run in the name of Edward W. Voigt, doing business as the Voigt Brewery Company, Limited. The court said:

“This is not an ordinary suit at common law. The right does not extend, as in the case of an ordinary personal action. There is no sufficient complaint filed in the court below to authorize the commissioner to start a suit in behalf of Edward W. Voigt, and I do not think, under these circumstances, that an amendment can be allowed so as to give validity to the process which would originally be void. I have a grave doubt whether, in the case which Mr. Pound has cited, that an amendment would be, in any event, proper; and, in a case of this description, it seems to me it would be statutory, and I think it would be better, to start an action. Well, gentlemen of the jury, for the reasons that I have assigned, you will render a verdict for the defendant.”

The record shows that there was no such partnership as the Voigt Brewery Company. There was then an action begun without a party plaintiff, for there, was no such person as the Voigt Brewery Company. It was not and could not be the name of a natural person. See Stirling v. Heintzman, 42 Mich. 449. The trial judge thought that the case could not proceed for want of a party plaintiff, and it did not err in holding that one could not be introduced by amendment under such circumstances. Id. Again, if the Voigt Brewery Company had been a valid copartnership, and .was correctly named as plaintiff, an amendment by substituting the name of a single person would have been the substitution of a different party, not the same party in interest. This is not a question of misnomer, as possibly it might be called if the proposal had been to amend by substituting the names of all the co-partners, as copartners, for the partnership name of an existing copartnership. It is a failure to name the true plaintiff, and need not be raised by plea in abatement. Like a case of nonjoinder or misjoinder of a plaintiff, it is fatal upon the trial.

The judgment is affirmed.

Carpenter, McAlvay, Grant, and Montgomery, JJ., concurred.


text:
    JOHNSON v. DETROIT & MACKINAC RAILWAY CO.
    Railroads — Killing Stock — Cattle Guard — Sufficiency.
    A cattle guard, so narrow that it does not fill the space necessary to be left between the “glance fences” to allow passage of the trains, does not comply with the statute though it is of a pattern approved by the railroad commissioner.
    Error to Iosco; Connine, J.
    Submitted February 17, 1905.
    (Docket No. 186.)
    Decided March 7, 1905.
    Case by Nelson Johnson against Detroit & Mackinac Railway Company for killing cattle. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Charles B. Henry, for appellant. •

      Jahraus &Bawden, for appellee.
   Hooker, J.

A former opinion in this cause has disposed of many questions that might otherwise require consideration upon this record. It will be found in 135 Mich. 353. As will be seen from that case, the plaintiff had recovered a verdict and j udgment against the defendant railroad company for the loss of stock killed by defendant’s train. According to the brief of the defendant, the negligence relied on was (1) that the cattle guard was allowed to remain dented and flattened so that cattle could cross it; (3) that the “ glance fence ” did not extend up to the cattle guard, but left a strip of ground shown to be nine inches wide, thus affording opportunity for the cattle to pass. The glance fence was a fence built parallel with the railroad. Theoretically, it should be built close to the cattle guard; and in this case it was inclined so as to accommodate the wider portions of the cars, above the running gear. In this case the inclination from the track was about 45 degrees. The defendants urged that the glance fence was set as close to the cattle guard as the passage of trains would permit, and that was all that the law required, that this pattern of guard was made of a certain standard width, and that the approval of such pattern by the railroad commissioner precluded the claim that it should have been wider, so that it could extend far enough to make it practicable to build the glance fence up close to it. It would be unreasonable to suppose that the installation of a cattle guard, with nothing to prevent cattle passing by the side of it, would be a compliance with the statute. It was the manifest intention that the gap should be closed, except a sufficient space for the passage of trains, and that the portion thus left open should be protected by a cattle guard of approved pattern. If there was a strip broad enough for cattle to walk upon, the law was not complied with. There was no error in submitting to the jury the question whether this glance fence and cattle guard were negligently constructed.

Counsel complains that the court instructed the jury that it was defendant’s duty to put in such a cattle guard as would prevent cattle from passing, which made defendant an insurer. An examination of the portions of the charge complained of does not establish this claim.

Error is assigned upon the alleged charge that the opinions of experts in relation to the safe condition of the guard “were not binding upon the jury.” This is not a full quotation of the language of the judge. When read with other comments accompanying it, no fault can be found with it. The same language was approved on the former hearing.

There are a few other assignments of error, but our examination convinces us that they are baseless, and that no useful purpose would be subserved by discussing them.

The judgment is affirmed.

Carpenter, Blair, Montgomery, and Ostrander, JJ., concurred.


author: Carpenter, J.

text:
    HOWATT v. GREEN.
    1. Adverse Possession — Hostility of Possession — Notice to Owner.
    When land is sold by one not' in possession the purchaser is bound to ascertain the rights of the possessor.
    2. Same — Rights Obtained by Purohaser.
    The suggestion that the purchaser of land from one out of possession acquires all the latter’s rights, includiug the right to be informed of the possessor’s hostile holding cannot be entertained.
    3. Same — Source of Knowledge.
    The knowledge of the hostile character of the possession of land necessary to set the statute of limitations in motion in favor of an adverse possessor need not proceed from the possessor nor any’other particular source, it being sufficient if it come to the owner of the record title from any source whatsoever.
    A Same — Setting Statute in Motion.
    Where, when one purchased the legal title to land, another was in exclusive possession claiming ownership under a recorded warranty deed purporting to convey title in fee to him, such purchaser was charged with notice of the extent of the possessor’s interest and the source. of his title, and limitations . then began to run in favor of the adverse possessor against the purchaser, although the latter did not actually know of the hostile possession, and although the hostile character of such possession was not known to his grantor, against whom it was originally merely permissive.
    5. Saving Questions for Review — Testimony — Transactions With Person Since Deceased.
    By failing to object to the introduction of testimony, its incompetency, under section 10212, 3 Comp. Laws, because relating to a transaction with a deceased person, is waived.
    6. Witnesses — Credibility.
    In a suit to remove a cloud from complainant’s title, circumstances held to discredit the uncorroborated, though not directly contradicted, testimony of defendant’s mediate grantor as to a lost lease.

      Appeal from Chippewa; Steere, J.
    Submitted January-10, 1905.
    (Docket No. 40.)
    Decided March 7, 1905.
    Bill by Charles Howatt and another against John H. Green and another to quiet title to land. From a decree for complainants, defendant Green appeals.
    Affirmed.

      Lanning, McMahon & Lyon, for complainants.

      Oren, Webster & Oarleton, for appellant.
   Carpenter, J.

This is a bill to remove a cloud from complainants’ title to lot 2 of Fourchette’s Addition to the City of Sault Ste. Marie. Complainants claim title by record and by adverse possession. Defendants claim title by record, and deny complainants’ adverse possession. As we believe that complainants have acquired title by adverse possession, it is unnecessary to determine, and we will not determine, who holds the record title.

The facts respecting adverse possession are these: The original patent was granted May 6, 1873, to John Baptiste Le May, alias John Baptiste Rebec. September 3, 1873, Le May transferred the land by warranty deed to Richard Payment (defendants’ mediate grantor). At the time of this conveyance one Michael Frichette or Fourchette (complainants’ mediate grantor) was in possession of the land, claiming to own the same by a warranty deed of record given by one who does not appear to have had the title. Frichette continued to occupy the land under this claim of ownership until a short time before his death, in 1890, when he conveyed the same by warranty deed to his daughter, Victoria Roberts. Since that time the property has been in the possession of the various immediate and mediate grantees of said Frichette, who have paid the taxes assessed upon it, and who claim and have claimed to own it.

Frichette’s possession of this land, which dates from 1851, presumably originated in the permission of the owner. It is contended that such owner never had knowledge of Frichette’s hostile claim, and that the principle that possession does not in such cases become adverse until the owner has such knowledge (see Ann Arbor Fruit & Vinegar Co. v. Railroad Co., 136 Mich. 599 [66 L. R. A. 431]), is a complete answer to complainants’ claim of adverse possession. Assuming that there was no knowledge of Frichette’s adverse possession before, the question arises whether such knowledge was not acquired at the time of Payment’s purchase in 1813. At that time Frichette was in possession of the land, claiming to be the owner. We have held that, when land is sold by one not in possession, the purchaser is bound to ascertain the rights of the possessor. See Allen v. Cadwell, 55 Mich. 8; Michie v. Ellair, 54 Mich. 518; Seager v. Cooley, 44 Mich. 14; Hommel v. Devinney, 39 Mich. 522; Russel v. Sweezey, 22 Mich. 235.

Upon the argument, counsel for defendants indicated his doubt of the application of the principle of these cases to the case at bar, suggesting that Payment acquired by his deed all of Le May’s rights, included in which was the right to be informed of Frichette’s hostile holding. We cannot accept this suggestion. Its force as an argument is based, in our judgment, upon the implied proposition that the information which charges an owner with knowledge that the possession originally rightful has become hostile must proceed from some particular source. This proposition is not sound. Knowledge is requisite in such cases, not because of the demerits of the adverse possessor, but because otherwise the rightful owner would be deprived of his property without any opportunity to assert his rights. It is not therefore necessary that that knowledge proceed from any particular source. It is not necessary that the adverse possessor give notice. If the owner acquire knowledge, no matter how, that the possession is hostile, the statute of limitations commences to run. See Ann Arbor Fruit & Vinegar Co. v. Railroad Co., supra. It follows that any circumstance brought to the owner’s knowledge which proves to him that the possessor asserts a hostile title starts the running of the statute of limitations. It follows, too, that his accession to Le May’s title did not exempt Payment from the consequences of any knowledge which proved to him that Frichette asserted a hostile claim.

Rejecting, as we must,, therefore, the suggestion of defendants’ counsel under consideration, no reason occurs to the court why such a purchaser as Payment is not presumed to know what all purchasers are presumed to know. Frichette was in exclusive possession, claiming to be the owner of this land. There was on record a warranty deed which purported to convey the title in fee. If Frichette’s possession had at that time ripened into a complete title, no one would maintain that Payment did not have constructive notice of that title. Shall we then say that possession is constructive notice where the possessor’s title is complete, but is not where that title is incomplete ? Surely no such distinction can be maintained. Payment could not in law, then, be ignorant — and he was not in fact ignorant — of Frichette’s exclusive possession of the land. With knowledge of this possession, it was Payment’s duty to inquire of Frichette the extent of his interest and the source of his title, and he is chargeable with what he would have learned had he made this inquiry. See Hommel v. Devinney and Russell v. Sweezey, supra. We are by no means certain that Payment did not make this inquiry and learn the exact facts. But it is immaterial whether he did or not, since, as already stated, the law presumes such knowledge. We are bound to say, therefore, that Payment had notice at the time of his purchase in 1873 of Frichette’s hostile holding, and, unless something occurred to prevent it, that the statute of limitations commenced to run at that time, and, long before this suit was commenced, made complainants’ title unassailable by defendants.

It is- claimed by defendants that at the time of Payment’s purchase he made an arrangement with Prichette which prevented the operation of the statute of limitations. In a depbsition, introduced in evidence in the court below without objection, Payment testified that at the time of his purchase he took steps to remove Prichette, and finally entered into a written lease, executed in duplicate, by which Prichette was to have possession of the property during his life and pay the taxes assessed against the property, and that he (Payment) had this lease until 1899, when it was destroyed by fire in his office and residence. Complainants urge that this testimony was prohibited by section 10212, 3 Comp. Laws, aDd that the court cannot therefore consider it. We think it a sufficient answer to this contention to say that, by failing to object to the introduction of this evidence, complainants waived the statutory prohibition and made the testimony admissible. Ripley v. Seligman, 88 Mich. 177.

If this testimony of Payment is credited, it affords a complete answer to complainant’s claim of adverse possession. If such testimony is discredited, complainants’ claim is established. The vital question in this case, then, is whether said testimony is entitled to credence. The trial court, as we infer, decided that it was not. We approve that decision. Ordinarily we do not state our reasons for crediting or discrediting a witness. But since in this case we discredit a witness who is not directly contradicted, we deem it proper to depart from our usual practice and state our reasons for not believing Payment’s testimony respect-' ing the execution of a lease by himself and Prichette.

If this testimony were true, we would expect it to be corroborated by some accompanying circumstance. The witness refers to no such corroborating circumstance, and the record shows none. No one appears to have known of any' steps taken by Payment to oust Prichette. No one appear to have ever read or heard of this lease. Payment transferred his title by warranty deed in 1879, on which day it came back to Payment’s wife. If this life lease was in existence it lessened Payment’s title, and it is therefore difficult to understand why it was not mentioned in his warranty deed. This life lease was the only evidence which proved that the party in possession did not own the land, and it is therefore singular that it was not shown to Payment’s immediate and mediate grantees, and that they did not take it as part of their evidence of title.

There are other circumstances which make Payment’s, testimony appear improbable. It is to be presumed that he made his arrangement with Frichette knowing that. Frichette claimed the title, and for the purpose of having conclusive evidence to defeat that title. By leaving Frichette in possession during his life with the obligation of paying the taxes, there was, so far as the world was concerned, the same indicia of ownership as before. If, for the purpose of defeating Frichette’s title, Payment made this arrangement, he would naturally have taken some step to make that arrangement notorious. He might have had the lease attested by reliable subscribing witnesses, and had it acknowledged and recorded. He appears to have done nothing of this nature. He appears to have neglected all these precautions, and does not explain his neglect.

Neither is there a sufficient explanation why Payment did not assert a claim after Frichette’s death, and before the lease was destroyed by fire. Frichette died in 1890. The lease was not destroyed, according to Payment’s testimony, until 1899. During this long interval of nine years the title acquired by Payment was, as Payment knew, in his wife. He was acting for her, and the situation made it his duty to assert her title. He knew that some other person was paying taxes on the land, but he says that he did not learn of Frichette’s death until 1902. This last statement is scarcely credible, for he swears he “went to the Soo several times to see and look over the land,” and the testimony shows that Frichette resided, at the time of his death, on property adjacent to that in controversy. If we believe that Payment was ignorant of Frichette’s death until 1902, that continued ignorance is inconsistent with his possession of the lease. If he had, as he testifies he had, the lease which gave his wife the right of possession on Frichette’s death, his vigilance and diligence should have discovered that death, and asserted her title some time during the nine years which intervened before the lease was destroyed.

In short, it may be said of this testimony of Payment that it is precisely such testimony as might have been fabricated. It is nbt corroborated by a single circumstance, and it is intrinsically improbable. We cannot, therefore, believe that the lease upon which defendants rely to answer complainants’ claim of adverse possession was ever executed.

It follows that, in our judgment, complainants have acquired a valid title by adverse possession, and the decree appealed from should be affirmed, with costs.

Moore, O. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Carpenter J.

text:
    ALDERTON v. WILLIAMS.

    1. Contracts — Indefiniteness.
    A contract, by which it is agreed to change a heading mill into a stavemill, and carry on £he business of manufacturing staves, is not void for indefiniteness in that it fails to specify the kind of machinery to be bought or the kind of staves to be manufactured.
    2. Same — Mutuality.
    A contract, by which one party agrees to change his heading mill into a stavemill, and carry on the business of manufacturing and selling staves, and establish a general store in connection therewith, and buy his supplies as far as possible from the other party, the other agreeing to advance the necessary money to carry out the enterprise and take his pay from a share of the profits, does not lack mutuality.
    3. Same — Uncertainty.
    A contract to carry on the business of manufacturing and selling staves as long as sufficient timber is to be had in the locality for that purpose is not void for uncertainty.
    4. Same — Consideration—Failure — One of Several Stipulations.
    That one of several promises forming the consideration of a contract is unenforceable does not invalidate it.
    5. Joint Enterprise — What Constitutes.
    Where one party agreed to establish and conduct a business and the other agreed to furnish a certain amount of money to assist it and take a stipulated portion of the net profits until paid, the business is properly described as a joint enterprise, though the parties are not partners and the title to the mill and business remained with the first party.
    6. Saving Questions for Review.
    The objection that evidence admitted on behalf of defendants denied allegations in the declaration which they had by their pleadings admitted to be true cannot be raised for the first time on error.
    7. Damages — Joint Adventure — Breach of Contract.
    Where a joint adventure fails because one of the parties fails to advance funds as agreed, the other is not limited in his damages to the excess of interest he would have had to pay on borrowing the money elsewhere, but he may recover substantial damages, including expense for machinery and labor incurred in performing his part of the agreement.
    8. Trial — Instructions—Necessity of Request.
    A judgment will not be reversed for the failure of the court to direct the attention of the jury to specific items of damages as to which the evidence was conflicting, where no specific instruction thereon was asked.
    9. Damages — Joint Adventure — Breach of Contract.
    Where a joint adventure involving the remodeling of a mill fails because one of the parties refuses to advance funds as agreed, the measure of the other’s damages is not affected by defects in his title to the machinery, where there is no privity between the first party and the alleged real owner of the machinery.
    10. Variance — Waiver.
    A variance between the pleadings and proofs will be deemed waived when brought to the attention of the court for the first time by a request to charge- after the close of the evidence.
    Error to Mecosta; Palmer, J.
    Submitted January 18, 1905.
    (Docket No. 67.)
    Decided March 7, 1905.
    Assumpsit by George A. Alderton against Charles E. Williams and Lafayette C. Williams upon promissory notes. There was judgment for defendants, and plaintiff brings error.
    Affirmed.

      James H. Davitt, for appellant.
    id. A. Lyon and M. Brown, for appellees.

       Rehearing denied May 12, 1905.

   Carpenter J.

Thisais the second time this suit has been before us. Our first decision will be found reported in 130 Mich. 626.

Plaintiff sues to recover $5,000, which he claims to have advanced as surety for defendants in payment of six notes on which he and defendants were the joint makers. After the former judgment was reversed in this court, defendants elected to waive the benefit of their plea of the general issue, admitted the facts alleged in plaintiff’s declaration, and relied upon the facts stated in an accompanying notice for their defense. Those facts may be briefly stated as follows: Defendants, as owners of a heading mill in the village of Beaverton, Gladwin county, Mich., agreed with plaintiff to remodel said mill into a stavemill, and to carry on the business of manufacturing and selling staves; to establish and conduct in connection therewith a general store; to buy the merchandise for this store, “as far as they reasonably could do,” at a grocery run by plaintiff in Saginaw under the firm name of George A. Alderton & Co.; to carry on said stave business ‘ ‘ so long as they could get sufficient timber for that purpose in the locality of said mill; ” and to make repayment of plaintiff’s advances by giving him 10 per cent, of the net profits of said business. In consideration of these agreements made by defendants, plaintiff agreed to advance from time to time the sum of $20,000, to be repaid as aforesaid. That defendants changed their heading mill into a stavemill, and performed their other agreements. That plaintiff, after advancing the $5,000 involved in suit, refused to make further advances, in consequence of which the venture utterly failed, to defendants’ damage.

The issue thus made was tried before a court and jury; defendants offering testimony which tended to establish the claim stated in their notice, and the plaintiff offering testimony denying the same. The case was submitted to a jury, who rendered a verdict of no cause of action. Plaintiff asks us to reverse the judgment entered on said verdict for various reasons, which, so far as needful, will be considered and discussed in this opinion.

Plaintiff insists that the contract relied upon by defendants is void for indefiniteness and want of mutuality. It is true that in certain particulars the contract is indefinite. For instance, it does not appear precisely what kind of machinery is to be bought or what kind of staves manufactured. It is impossible to believe that such indefiniteness would present an obstacle to the proper performance of the contract. We are referred to no authority, and we believe there is no authority, which holds that indefiniteness in details of this character makes an entire contract void. If it did, nearly every complicated contract would be void. Nor is the contract void for want of mutuality. The agreement of one party is the consideration for the agreement of the other, and just what each agreed to do clearly appears.

Neither can it be said that there was such an uncertainty as to the duration of the stave business as to render the contract void. The business was to be carried on “so long as they could get sufficient timber for that purpose in the locality of the mill.” In Raymond v. White, 119 Mich. 443, where it was agreed that certain payments should be made “as long as defendant should continue to use ” the inventions of plaintiff, this court held that “the time that the contract was to continue was not uncertain.”

In this connection, we should'; notice plaintiff’s contention that the agreement that defendants should buy from him supplies, “ as far as they reasonably could do,” is not enforceable. If so, this is only one of several agreements made by defendants which constituted the consideration for plaintiff’s agreement, and it would not, therefore, affect the latter’s obligation to perform his agreement. See Wesleyan Seminary v. Fisher, 4 Mich. 515.

Defendants obtained a verdict upon the assumption that they and plaintiff entered into a joint enterprise. Plaintiff contends that this assumption is erroneous. He insists that, according to the testimony of defendants, the parties were not engaged in a joint enterprise. It is true that the contract establishhd by defendants’ testimony did not create a partnership between themselves and plaintiff, and that the mill continued to be the mill of defendants. But it is none the less true that that contract made plaintiff and defendants jointly interested in the business of manufacturing and selling staves, and this business may properly be described as a joint enterprise.

Plaintiff insists that defendants, in introducing evidence that the indebtedness sued for was payable only from the profits of the stave business, were denying the allegations of the declaration which they had by their pleadings admitted to be true. A diligent examination of the record fails to show that this objection was made in the trial court, and therefore we cannot consider it.

The trial court charged that, if the business venture failed by reason of plaintiff’s breach of contract, defendants could recover as damages “whatever loss was occasioned to them by reason of such breach. * * * The damages must be such as grow directly out of the breach,” and “would be limited to the actual outlay on expense incurred in changing over the heading business to the stave business, on account of the contract relations requiring that to be done. * * * Of course, you may take into account not only the expense * * * of changing over this mill as far as machinery is concerned, but the necessary labor, its fair value according to the proof, * * * that would be an element of damage, also.” Notwithstanding the various objections urged by plaintiff, we think he cannot complain of this charge.

In Harrow Spring Co. v. Harrow Co., 90 Mich. 147, we said in a case like that at bar, “the injured party is clearly entitled to recover his damages for expenses incurred in good faith in anticipation of performance by the other party.” This decision answers, with one exception, all of plaintiff’s objections to the above charge. That exception arises from his contention that the measure of damages where one fails to advance money as agreed is the excess in interest which the borrower is compelled to pay to procure the money elsewhere. This principle is applied, as appears from the cases cited by appellant, where the defaulting party failed to advance money which he had promised to loan. In such cases the law presumes that the borrower can obtain money elsewhere, and the increased rate of interest therefore furnishes full compensation for his damages. Those cases and the principle underlying them have no application to the case at bar. Here plaintiff defaulted, not in making an agreed loan, but in contributing to a joint adventure. Even if defendants had the right to do so, it cannot be presumed that they could have obtained such a contribution from some other source. And we have held that, when a joint adventure fails because one of the parties refuses to advance his agreed money contribution, he is liable for substantial damages. See McCreery v. Green, 38 Mich. 173. We do not discuss plaintiff’s objections to certain of defendants’ testimony which tended to prove damages. For, assuming the rule of damages announced by the trial court to be correct — and we have held that it was correct — the testimony was properly admitted.

Plaintiff complains because the court did not of his own motion direct the attention of the jury to specific items of damages, concerning which there was a conflict of testimony. The charge of the court gave the jury a correct general rule by which they should determine the allowance or disallowance of these items. There is nothing to show, and we cannot presume, that the jury erred in applying that rule. Had the plaintiff desired a more specific charge concerning any of these items, he should have requested it, and, as he did not do so, he cannot now complain. See Anderson Carriage Co. v. Pungs, 134 Mich. 474.

Defendants’ title to a part of the machinery damaged by the breach of contract was defective, and plaintiff complains because the trial court ruled that this circumstance could not be considered in reducing damages. Is plaintiff in a situation to question that title ? There is no privity between plaintiff and the real owner of the property. He is not liable to such owner. Up to the time of trial such owner had never asserted his title, and he may never assert it. If defendants’ title is defective, they would be liable to the real owner for the damages caused by plaintiff’s breach of the contract, while plaintiff would be under no such liability. It follows that the flaw in defendants’ title was an immaterial circumstance. It did not lessen defendants’ loss, and it should not lessen plaintiff’s liability.

Complaint is made because the court did not give the following instruction preferred by plaintiff:

“The notice of recoupment alleges that plaintiff ‘was doing a wholesale grocery business under the firm name of George A. Alderton & Co.’ But the proofs show that the firm of George A. Alderton & Co. was composed of George A. Alderton, Albert Alderton, and John McPhillips. This allegation relates to the consideration of the contract, for the alleged breach of which defendants make their claim of damages, and there is therefore a fatal variance between the pleading and the proof, and for that reason defendants cannot be allowed anything under their claim for recoupment.”

Plaintiff must have known precisely what business defendants intended to describe. He was not, therefore, misled by the slightly inaccurate description in defendants’ notice. He .did not raise the objection until he preferred this request at the conclusion of the trial. We have held “that where testimony was introduced, and the party relying upon a variance made no objection on that ground until his request to charge, when it was brought to the attention of the court for the first time, it was too late, and the objection would be deemed waived.” Merkle v. Township of Bennington, 68 Mich. 142; Stone v. Covell, 29 Mich. 359. No other complaint demands discussion.

The judgment is affirmed, with costs.

McAlvay, Grant, Blair, and Montgomery, JJ., concurred.


text:
    WALTERS v. DETROIT UNITED RAILWAY.
    Carriers of Goods — Liability—Continuance—Notice to Consignee.
    The obligation of a carrier who holds goods after transit, awaiting delivery, continues until the consignee has been notified of their arrival and has had reasonable time, in the common course of business, to take them away after such notification, though the consignee knows the probable date of shipment and probable date of arrival.
    Error to Oakland; Smith, J.
    Submitted February 10, 1905.
    (Docket No. 137.)
    Decided March 7, 1905.
    Case by Guy A. Walters and Charles M. Smith, co-partners as Guy A. Walters & Company, against the Detroit United Railway for goods destroyed while in transit. There was judgment for plaintiffs, and defendant brings error.
    Affirmed.

      Brennan, Donnelly & Van De Mark and James H. Lynch, for appellant.

      Rockwell & Zimmerman (S. W. Smith, of counsel), for appellees.
   Carpenter, J.

On the 7th of April, 1903, plaintiffs purchased at the village of Trenton, Wayne county, certain furniture for a drug store. They placed that property in the custody of defendant’s agent at Trenton, with instructions to ship the same over defendant’s railway— defendant is a common carrier of merchandise — to them at Pontiac, Oakland county, on Friday, April 10th. Had the goods been sent as directed, they would, according to the usual custom, known to plaintiffs, have reached Pontiac on Saturday, the 11th, or Monday, the 13th, of April. The goods were in fact shipped on the 8th and arrived in Pontiac on the 9th. They were placed in defendant’s warehouse, and were there destroyed by fire Tuesday, April 14th, before notice of their arrival was given to plaintiffs. Plaintiffs brought suit and recovered judgment upon the ground that defendant’s liability as common carrier continued at the time the goods were destroyed. Defendant insists that a verdict should have been directed in its favor.

There was no evidence of defendant’s negligence. If, at the time the goods were destroyed by. fire, defendant continued to hold them under its responsibility as a common carrier (that is, as an insurer against all injuries except acts of God), it was liable. If it did not so hold them, it was not liable. Jurists have not agreed as to the obligation of a carrier who holds goods after transit, awaiting delivery. Respecting this question,—

“ Three distinct views have been taken: * * *
“First. That when the transit is ended, and the carrier has placed the goods in his warehouse to await delivery to the consignee, his liability as carrier is ended, also, and he is responsible as warehouseman only. * * *
‘ ‘ Second. That merely placing the goods in the warehouse does not discharge the carrier, but that he remains liable as such until the consignee has had reasonable time after their arrival to inspect and take them away in the common course of business. * * *
“ Third. That the liability of the carrier continues until the consignee has been notified of the receipt of the goods, and has had reasonable time, in the common course of business, to take them away after such notification.” See opinion of Cooley, J., in McMillan v. Railroad Co., 16 Mich. 102.

In this case Justice Cheistiancy concurred with Justice Cooley in holding that the view last stated was correct, while Chief Justice Maetin concurred with Justice Campbell in holding that the view first stated was correct. In the subsequent case of Buckley v. Railway Co., 18 Mich. 121, a majority of the court, consisting of Justices Geaves, Cooley, and Cheistiancy, concurred in holding that the liability of a common carrier continued a reasonable time after the goods were placed in the warehouse. There was no occasion for them to decide, and they did not decide, whether that reasonable time commenced to run at the time the goods were placed in the warehouse, or at the time notice was given to the consignee. We are unable to find that this precise question has ever been determined by this court. It is necessary for us to determine it now. Without undertaking to repeat the arguments of Justice Cooley, which are familiar to all careful students of the Michigan Reports, it is sufficient to say that they are so clear and forceful that we have no hesitancy in declaring that the carrier’s obligation continues until the lapse of a reasonable time after he has notified the consignee of the arrival of the goods. This conclusion disposes of the case, and results in an affirmance of the judgment.

In stating this conclusion, we have not overlooked defendant’s contention that the rule does not apply where, as in this case, plaintiffs knew the probable date of shipment, and the probable time of arrival of the goods. To insist that this circumstance exempts the carrier from liability is to deny the existence of the rule we have just declared. To be more precise, it is to insist that the second, and not the third, of the rules heretofore stated, is the correct one. This is clearly shown by quoting from the opinion of Justice Cooley in McMillan v. Railroad Co., supra:

“ The rule as secondly above stated proceeds upon the idea that the consignee will be informed by the consignor of any shipment of freight, and that it then becomes the duty of the former to take notice of the general course of business of the carrier, the time of departure and arrival of trains, and when, therefore, the receipt of the freight may be expected, and to be on hand, ready to take it away when received.”

And the same learned jurist, in stating why that rule should be rejected, states a sufficient reason for denying the present contention of defendant:

“ To require the consignee to watch from day to day the arrival of trains, and to renew his inquiries respecting the consignment, seems to me to be imposing a burden upon him, without in the least relieving the carrier. For it can hardly be doubted that it would be less burdensome to the carrier to be required to give notice, than to be subjected to the numberless inquiries and examinations of his books which would otherwise be necessary, especially at important points.”

In support of its position, defendant cites several cases decided by courts who deny the rule declared to be law in this State. It is scarcely necessary to say that decisions of a court denying the rule afford no aid in construing it.

Judgment affirmed, with costs.

McAlvay, Grant, Montgomery, and Hooker, JJ., concurred.