Miscotten v. Hellenthal

127 N.W. 324, 162 Mich. 402, 1910 Mich. LEXIS 1057

Opinion

Brooke, J.

{after stating the facts). While the bill of complaint in one paragraph avers that complainant is in possession of the disputed strip, other facts are set out therein which indicate the contrary, and the evidence shows conclusively that defendants and their grantors have held possession of the strip for many years, and are now in possession thereof. The circuit court found that defendants were in possession under the lease, which was declared to be valid, and of which complainant had notice •at the time of his purchase. It is unnecessary to determine whether this holding was correct or not. The decree was one simply dismissing the bill, and we think it was warranted upon the conceded facts in the case.

Defendants being in possession of the property in dispute under a claim of title, equity has no jurisdiction; complainant’s remedy is by an action at law. Stockton v. Williams, 1 Doug. (Mich.) 546; Wykes v. Ringleberg, 49 Mich. 567 (14 N. W. 498); Kilgannon v. Jenkinson, 51 Mich. 240 (16 N. W. 390); Bresler v. Pitts, 58 Mich. 347 (25 N. W. 311); Andries v. Railway Co., 105 Mich. 557 (63 N. W. 526); Dolan v. Smith, 147 Mich. 276 (110 N. W. 932); Simmons v. Day, 151 Mich. 1 (114 N. W. 853); Warren v. Warren, 151 Mich. 96 (114 N. W. 867); Nicholls v. Lumber Co., 157 Mich. 234 (121 N. W. 742).

The cases of Wilmarth v. Woodcock, 58 Mich. 482 (25 N. W. 475), Campbell v. Kent Circuit Judge, 111 Mich. 575 (70 N. W. 141), Rhoades v. McNamara, 135 Mich. 644 (98 N. W. 392), and Cullen v. Ksiaszkiewicz, 154 Mich. 627 (118. N. W. 496), relied upon by complainant, have been examined. They are clearly distinguishable, and have no application to a situation such as is disclosed by the facts in the case under consideration.

The decree is affirmed, with costs of this court to defendants.

Bird, C. J., and Ostrander, Moore, and Blair, JJ., concurred.