Wicker v. Trombly

18 N.W.2d 817, 311 Mich. 262, 1945 Mich. LEXIS 407

• Court: Michigan Supreme Court
• Decided: May 14, 1945
• Docket: Docket No. 56, Calendar No. 42,950.
• Status: Published

Opinion

Wiest, J.

Plaintiff William Wicker and his wife owned, by the entirety, record title to lot 66 in a recorded residential subdivision in the city of Detroit and defendants owned the adjoining lot 65. The platted dimensions of the lots are 30 feet in width and 116 feet in depth. In September, 1942, William Wicker, individually, filed the bill herein to enjoin defendants from trespassing upon lot 66, averring acts of trespass on 11% inches along the north side of lot 66. Defendants answered and by cross bill claimed title to the mentioned strip of land by adverse possession and sought decree to such effect. The issues were joined and proofs taken before a circuit court commissioner. Upon report of the commissioner the court dismissed plaintiff’s bill to restrain trespass and decreed defendants owner in fee of the land in question, acquired by them by adverse possession, and granted right to record the decree in the office of the register of deeds.

Plaintiff appeals an'd presents the point that the court was in error in divesting Mrs. Wicker of her right of ownership as a tenant by the entirety of the property involved, without her being a party to the litigation.

At the hearing it was made to appear that lot 66 was owned by Mr. and Mrs. Wicker, by the entirety, as husband and wife. The decree, vesting title to the land involved in defendants, is reversed and1 the case remanded to the circuit court.

It is true the decree vesting title in defendants by virtue of adverse possession runs against plaintiff who, under the evidence, held no title apart from that by the entirety with his wife.

The court in decreeing title to defendants described the strip of land by metes and bounds. Plaintiff claims that no one can take the description employed by the court and tell to what extent it takes land from lot 66. We find upon examination of exhibits in the ease a statement of a surveyor, introduced in evidence by plaintiff, which closely tallies with the description of the premises in the decree. '

Plaintiff complains that the court in an opinion placed the burden on plaintiff to disprove adverse possession on the part of defendants. We do not so read the opinion. The court did state that the burden was on plaintiff to establish the trespass alleged but found that defendants had established title by adverse possession.

Under the record, without Mrs. Wicker being a party and plaintiff having no separate interest in the premises, the decree was a nullity. For that .reason we reverse and remand the case. Plaintiff lost the case he commenced for trespass but defendants under their cross bill, without Mrs. Wicker being made a party thereto, were not entitled, to decree vesting title to the disputed strip in defendants. We have concluded to let each party stand their own expenses of this litigation.

Starr, C. J., and North, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.