Moody v. Seaman

8 N.W. 711, 46 Mich. 74, 1881 Mich. LEXIS 517

• Court: Michigan Supreme Court
• Decided: April 27, 1881
• Status: Published

Opinion

Campbell, J.

Mrs. Seaman, the defendant in error, commenced summary proceedings to recover possession of land, claiming the right of possession as tenant in dower, and guardian of her infant children. She was, at the time of her marriage to Mr. Seaman, widow of John W. Pardee, who had owned the land during his life. The defendant below claimed in his own testimony to have gone into possession under a verbal agreement of sale, for a price of six hundred dollars which was to be paid by payments of seventy dollars a year, but which, as he showed, had not been • paid except by some early payments about ten years ago. The testimony on the other side showed a mere tenancy at will, on rent which had become somewhat in arrears, and proof was made of a five or six months’ notice to quit, a promise by Moody to give up possession on the first of April, 1880, and a second notice of fourteen days before April 1. Judgment was given on appeal for the demandant.

The questions raised are all within a narrow compass, and need not be discussed separately throughout.

The form of the complaint

* is in compliance with the .statute, and within the rule of Bryan v. Smith 10 Mich. 229.

It is objected that Mrs. Seaman could not bring this proceeding before her dower was assigned. This might be true if she had represented no other interest, because the statute does not contemplate proceedings unless the demand-ants represent the entire interest. But it has not been doubted that tenants in common of the whole estate could join in such action. Under our present statutes a widow may bring ejectment for her undivided interest at once and without assignment, and is recognized as having a present possessory claim capable of enforcement. Proctor v. Bigelow 38 Mich. 282. In connection with the heirs at law there ■can be no doubt the whole possessory estate is represented. In this case it happens that she herself has the right of possession on behalf of the heirs, and there is no reason why, inasmuch as she thus represents for them and herself the whole title, she should not be allowed to vindicate the pos■session.

Neither is there any doubt of the right to bring this pro-ceding on either of the theories of the contending parties. The statute gives the right in case of breaches of land contracts as well as on leases. Comp. L. §6706. The respondent himself showed he was in default, and whether he was im as purchaser or lessee, he was in either case a tenant at will, and liable to be ousted on notice. Crane v. O'Reilley 8 Mich. 312. It was held also in. this case that such a tenan,t could waive notice.

In this case there was evidence of full notice, and further-evidence of a promise to surrender. Unless the fourteen-day notice was a waiver of any other right the case is open to no doubt. That notice was no more nor less than a notice-to leave at the time previously required and agreed on. It does not occur to us in what way a repetition of the same-demand is inconsistent with the demand.

It is also claimed that section 21 [of Chapter 123] of theKevised Statutes of 1846, which prohibited proceedings in certain cases after three years’ possession, is still in force. That section is obscure, and if wé had occasion to consider it, might require some attention. But in 1867 it was included in a statute substituting certain sections named for-the existing sections of the old law. Laws 1867, Act 94. Probably the identity of language was an error. But in 1869 (Laws 1869, p. 197) several new sections were substituted for former ones, and the law of 1867 was expressly repealed.. We think there can be no doubt that the intention of this-statute was to repeal all of the sections included in the statute of 1867, and therefore section 21 ceased to have any further force, and the statutes must be read without it.

No questions appear in the cause which are not covered, by what has been already said.

The judgment must be affirmed with costs.

The other Justices concurred.

COMPLAINT.

To Harry F. Chipman, Esq., Circuit Court Commissioner, Wayne County, Michigan.

The complaint of Harriet A. Seaman of said county of Wayne, respectfully shows that Abraham Moody is in possession of the following -described lands and tenements, situated in the town of Dearborn, in said county of Wayne and State of Michigan, to wit: * « « [description -omitted] « * * « That Harriet A. Seaman is the landlord of said premises, and said Abraliam Moody is the tenant under her.

That said Abraham Moody holds said premises unlawfully, and against the rights of the said Harriet A. Seaman, and that the said Harriet A. Seaman is entitled to the possession of the same in her own right and as guardian of the minor heirs of John W. Pardee, deceased.

Wherefore, this complainant prays that proceedings according to the statute in such case made and provided, may be taken against said Abraham Moody, and that the possession of said premises may be restored to said Harriet A. Seaman.

Hattie A. Seaman.