Property Law and Real Estate Commons^™

Quasi Contracts-Liability Of Landowner For Repairs Furnished Without Request

Michigan Law Review

Plaintiff furnished labor and materials for repairs to a farm house owned by defendant. The work was done without the knowledge of defendant at the request of defendant's brother who was occupying the place at the time and who had formerly been the owner. Plaintiff sued to foreclose a materialman's lien, but the lien was disallowed because not filed in time. It was held, nevertheless, that even though plaintiff was unable to prove either a contract with defendant or an agency relationship between defendant and his brother, plaintiff could still recover the reasonable value of the benefits furnished to …

Adjoining Landowners-Injury From Mining Operations-Right To Prospective Damages

Michigan Law Review

Defendant corporation was conducting its mining operations some distance from plaintiff's land. Plaintiff brought this action to recover for injury to his residence caused by subsidence. The judgment in the trial court represented both actual and prospective damages. On appeal it was held that plaintiff may recover only the cost of repairs. O'Donnell v. Oliver Iron Mining Co., 273 Mich. 27,262 N. W. 728 (1935).

Assignments -Validity Of Gratuitous Written Assignment

Michigan Law Review

Deceased took defendant, his son, to a notary and there made and acknowledged written assignments of three mortgages he owned. He handed these assignments to defendant, saying "I give you these. Put them in the safety-deposit box." Defendant went away with the assignments which reappear only after the father's death; they were found in an envelope, marked with defendant's name in deceased's hand, in a safety-deposit box owned jointly by deceased and defendant. Deceased always retained possession and enjoyment of the actual mortgage instruments. Plaintiff, another son, claims these mortgages should be part of deceased's estate. The court held that …

Eminent Domain-Validity Of State Statute

Michigan Law Review

As upon certiorari, the New Mexico Supreme Court considered the question, whether it is "within legislative competence to declare a public use in the industry of coal mining, so as to permit taking private property in aid of it." Plaintiff had obtained a judgment of condemnation, and defendant attacked it as offensive to the New Mexico constitutional provision: "Private property shall not be taken or damaged for public use without just compensation." The opinion recognized the existence of an "orthodox" and a "liberal" doctrine of construing "public use." While the court found that, unlike Nevada's or Utah's, New Mexico's well-being …

Fixtures - Effect Of Forfeiture Of Lease On Rights Of Conditional Vendor Who Sold Chattels To Lessee Under Title Retention Agreement

Michigan Law Review

L executed a ninety-nine year lease of certain Chicago real estate to T, who agreed to erect thereon, as security for the payment of rent, a building of a certain description and to keep the premises free and clear of all liens arising from the construction of the building. The lease was recorded, and the building was erected with funds procured by the sale of bonds secured by a trust mortgage of the leasehold to E. When completed the building contained, as required by city ordinance, an automatic water sprinkling system, purchased by T from V under a …

Landlord And Tenant-Liability Of Lessee For Breach Of Contract- Measure Of Damages

Michigan Law Review

Defendant, lessee under a contract providing for payment of rents monthly in advance, moved out before expiration of the term and gave notice of refusal to comply further with the terms of the lease. Plaintiff, lessor, elected to treat the failure to pay the installment then due as a present breach of the contract and sued for damages. Defendant claimed that the contract had become unilateral after plaintiff's performance in conveying the leasehold which would give grounds for an anticipatory breach which defendant claimed was the theory of plaintiff's action. On defendant's demurrer to the complaint, it was held that …

Easements-Implied Grant-Right Of Way-Discontinuous

Michigan Law Review

Plaintiff's testator owned a tract of land on which there were two houses. In 1897 he sold one house, which came to the defendant by various mesne conveyances. Defendant's property was narrow, the sole means of access to the rear of the house being a driveway, wholly situated on the land retained, now owned by the plaintiff. From the time of its erection all occupants of defendant's dwelling had used the driveway as a means of hauling coal and wood to the rear of the house. Plaintiff sought to restrain this use and defendants claimed an implied easement, by grant, …

Future Interests-Implication Of Condition Subsequent In Conveyance In Consideration Of Support-Equitable Aid To Owner Of Right Of Entry

Michigan Law Review

Plaintiff, guardian for one Toft, sues to quiet title to land conveyed by Toft to defendant on May 14, 1931, without solicitation or suggestion on defendant's part. Toft at the time was 74 years old. The deed reserved a life estate in Toft, and provided that the grantee was to take care of the grantor during his lifetime. This was all of the grantor's property except about $500. Defendant left after a quarrel on July 5, 1931, but returned a week later and stayed until January 18, 1932, when Toft threatened her life, and she left and has never returned. …

Subrogation-Rights Of Ward In Security For Debt Of Guardian Discharged By Diverted Fund

Michigan Law Review

S, guardian for some minor children, used $ 1200 of their money without order of court for the discharge of a mortgage on land belonging equally to himself and the wards. Plaintiff, obtaining a judgment against S, levied on his apparent half-interest in the land and purchased it at the execution sale for the balance due on the judgment. In partition proceedings the wards set up the unauthorized use of their money and claimed a lien for $600 on plaintiff's interest. Held, since the plaintiff gave no consideration except the satisfaction of an antecedent debt, it is …

Future Interests-Rule Against Perpetuities-Application To Estate Created Under Power Of Appointment By Will Only

Michigan Law Review

The testator died in 1872 leaving to testatrix in trust certain property over which she was given a general power of appointment by will. The testatrix died in 1928 leaving this property in a trust which was found to violate the rule against perpetuities. In discussing this, the question was raised whether in testing the validity of the estate created by the power of appointment, the period of the rule is calculated from the time of the creation of the power of appointment or from the time of its exercise. Held, that the permissible period is to be measured …

Specific Performance-Failure Of Vendor's Title

Michigan Law Review

The defendant leased his ice plant to the plaintiff with an option to purchase at a certain price and to pay an additional $50 in ice at the market price for the "east 15 ft. of lot 4." The plaintiff exercised the option and performed all the conditions. The defendant failed to execute a deed to the "east 15 ft. of lot 4," claiming that he did not own it, although he had accepted part of the purchase price for the parceI not owned and it was necessary for the operation of the ice plant. In an action for specific …

Municipal Corporations-Regulation Of Gas Stations-Delegation To Property Owners Of Power To Modify Zoning Restrictions

Michigan Law Review

A city ordinance prohibited the installation of gasoline filling stations within the city except after obtaining the written consent of 51 per cent of the property owners within a radius of six hundred feet from the site. Relator, without obtaining the required consent, asked for a writ of mandamus, which was refused. The court held the regulation not arbitrary but substantially relating to the public safety and welfare, and not a delegation of legislative powers. State ex rel. Standard Oil Co. v. Combs, 129 Ohio St. 251, 194 N. E. 875 (1935).

Equity-Rescission For Fraud-Equitable Lien In Aid Of Restitution

Michigan Law Review

Defendant had an option to buy certain land at $95 per acre. He induced the plaintiff to take 100 acres at $300 per acre by fraudulently representing the land to be of the same value and quality as some he had previously sold her, and by concealing the existence of the option. Defendant used $20,000 of plaintiff's money to purchase and improve another tract of land as a homestead. Plaintiff seeks to have the contract of purchase rescinded and to secure a lien on the homestead. Held, conveyance of the 100 acre tract rescinded and title to it restored …

Deeds - Effectiveness Of Deeds Delivered With Blank For Name Of Grantee

Michigan Law Review

In an action upon an oral contract to recover the purchase price of an equity in realty, it appeared that the plaintiff executed a deed with a blank left for the name of the grantee and delivered it to the defendant, whereupon the latter refused to make the promised payment, and suit was brought. The Statute of Frauds being interposed as a defense, on the theory that the contract, being oral, was unenforceable in the absence of a showing of part performance, it was held, that the delivery of the incomplete deed, giving the defendant implied authority to fill …

Equity - Rescission Of Contract Induced By Fraud - Money Judgment As An Alternative To Specific Restitution

Michigan Law Review

Plaintiff entered into an agreement for the exchange of interests in real estate with one of the defendants. After payment of part of the boot money agreed upon, the plaintiff defaulted and sued to have the agreement rescinded for fraud. The trial court rendered a money judgment for the amount at which the plaintiff's property had been taken on the trade. Held, that defendant's wife, to whom the property had been conveyed, should have been joined, and that the decree should be modified to order a reconveyance to the plaintiff. Bacon v. Fox, 267 Mich. 589, 255 N. …

Recording - Operation Of The Recording Acts On Quitclaim Deeds

Michigan Law Review

A conveyed two specific lots in Harris County to B. Before that deed was recorded, and while the lots were still vacant, A conveyed several specific tracts of land to C and added a blanket clause of "all other lands and interest in lands belonging to A in Harris County"; C made a like conveyance to D; D conveyed the two specific lots in question to E by warranty deed; E conveyed the two lots to plaintiff by warranty deed sixteen years after the deed to C. All the deeds in the second chain of title were …

Easements - Extinguishment By Adverse Possession Of Servient Owner - Character Of Acts Necessary

Michigan Law Review

In I 902, Y, the owner of riparian land, granted to W, by deed then recorded, the flowage rights over such land. Some years later by general warranty deed containing no reference to the easement, the servient land was conveyed to L, from whom by similar successive conveyances it came to the plaintiff. In the interval the flowage rights had passed to the defendant, and in 1931 the latter erected a dam across the river and flooded the plaintiff's land. Thereupon the plaintiff brought this action for damages. The trial court held that, though all the owners …

Eminent Domain --Valuation Of Leaseholds -- Apportionment Of Award Between Landlord And Tenant In Long-Term Lease

Michigan Law Review

The Michigan Supreme Court had before it last fall a very unusual case involving the apportionment of a condemnation award between landlord and tenant. Only a portion of the leasehold premises was condemned. The lease still had approximately eighty years to run; it had no market value due primarily to the depression; and it constituted the sole assets of the lessee. The lease contained a clause. providing for rent abatement in case part of the premises was condemned. The lessors insisted that the lessee must be content with this rent abatement and that they were entitled to the whole award. …

Taxation - Assessment For Property Taxes

Michigan Law Review

In 1926 the plaintiff purchased a lot with the building thereon for $41,000 and expended $ 10,000 in the improvement of the premises. In the same year the property was leased for a period of fifteen years under an agreement that the rent was to be $6,000 for the first five years, $8,000 for the second five, and $10,000 for the third. Plaintiff objected to the tax assessment of $68,660 for the years 1929, 1930, 1931, and 1932 on the grounds that the court based its valuation on (1) actual earnings instead of earning capacity, and on (2) gross, as …

Rights In Land - Lateral Support - Statute Increasing Common Law Rights And Duties - Constitutionality

Michigan Law Review

Plaintiff sued for damages to his building which collapsed during excavating operations on defendant's adjoining land. A Michigan statute makes it the duty of land owners excavating to a depth of 12 feet or more below grade level to furnish sufficient lateral support to protect adjacent land and structures thereon from injury "due to the removed material in its natural state, or due to the disturbance of other existing conditions caused by such excavation," and imposes liability for injuries due to failure to comply with the act. The excavation on defendant's land, reaching a depth of 14 feet below grade …

Conflict Of Laws - Foreign Marriage - Dower

Michigan Law Review

Plaintiff was divorced in the District of Columbia on the ground of her adultery with defendant's intestate. A statute of the District provided that the innocent party only may remarry. With no intention of evading the statute, plaintiff and defendant's intestate established a domicil in Florida and were there married. On the death of the latter in the District of Columbia, plaintiff claimed a dower interest in real estate located there. Held, plaintiff can recover. Loughran v. Loughran, 292 U. S. 216, 54 Sup. Ct. 684 (1934), reversing Loughran v. Loughran, (App. D. C. 1933) 66 F. …

Vendor And Purchaser - Mortgaging Of Land By Vendor - Effect On Vendee's Duty To Continue Installment Payments

Michigan Law Review

Plaintiffs agreed in writing to purchase a tract of land from the defendant, the purchase price to be paid in stated installments or in full at any time at the option of the plaintiffs. Two days after the formation of the contract the defendant mortgaged the land, and about eight months later placed a second mortgage on it. Plaintiffs denied having any knowledge of the mortgages until attempts were made to foreclose them. Previous to this, however, they had defaulted in their payments. In an action in general assumpsit to recover the amount of the installments paid it was held …

Recording - Preservation Of Priority By Recording Within Statutory Period

Michigan Law Review

Plaintiff sued to foreclose a motor vehicle lien filed under the provisions of sections 8524-8528, Mason's Minn. Stat. (1927). Intervener interposed a claim as bona fide purchaser of the automobile before the lien was recorded. Plaintiff did record within the sixty day period fixed by the statute for that purpose. Held, the lien is superior to the title of intervener, even though latter bought the automobile without knowledge or notice, actual or constructive, of the lien. Pratt v. Armstrong et al. (Bud Johnson, Inc., Intervener), (Minn. 1934) 255 N. W. 91.

Municipal Corporations - Immunity Of City From Tort Liability - Attractive Nuisance

Michigan Law Review

The minor plaintiff, a child of eleven, was injured when she fell from a swing in a playground maintained by the defendant, and struck a jagged stone which protruded from the surface of the earth about eight feet beyond the base of the swing. She and her parents joined as plaintiffs in this suit, alleging that the defendant was negligent in failing to keep the ground around the swing in a reasonably safe condition and free from dangerous objects upon which a child might fall. Held, the defendant is liable for its failure to keep the earth around the …

Trusts - Change Of Circumstances As Basis For Variation Of Trust Instrument

Michigan Law Review

The testator left his estate to trustees with directions to pay the income to his widow and three sons in equal shares, the principal to vest in the sons upon his widow's marriage or death. The widow in addition was given the use of the family homestead or the use of a new home not to exceed the price of $25,000. The homestead, valued at $200,000, became undesirable for residential purposes due to the growth of the business center of the city. The widow petitioned the court to direct the trustees to pay her $15,000 a year from the trust …

The Vendee's Lien- On Land And Chattels

Michigan Law Review

The vendee's lien is now firmly established as an equitable device to insure full restitution to the purchaser of land on his rescission for the vendor's fraud or default. It first appeared in a dictum in an early English case where it was suggested as a possible analogy to the implied vendor's lien for the purchase money. But it was 1855 before the question was presented squarely to an English court of record, and 1860 when the House of Lords definitely approved it. Long before this, however, courts of equity in the United States had begun to μse this device …

Contracts - Consideration - Agreement To Reduce Rent Reserved In Lease

Michigan Law Review

Plaintiff sued defendants, who were trustees of a business trust, to enforce personal liability upon them for accrued rent due under a lease. When the lessee company, which was losing money because of the depression, threatened to vacate the premises, the plaintiff acquiesced in the lessee's demand that the rent be reduced for the balance of the term. Plaintiff sought to recover the amount due under the lease, claiming that the agreement for reduction was without consideration and therefore a nullity. Held, that in view of plaintiff's knowledge of the lessee's financial condition, the latter's agreeing to remain in …

Stare Decisis -The Retroactive Effect Of An Overruling Decision

Michigan Law Review

In 1923 the Supreme Court of Michigan ruled, in Kavanaugh v. Rabior, that property lying between the meander line and the waterline of the Great Lakes belonged to the State. The defendant, after this decision and upon the advice of the State Conservation Department, refused to pay rent to the plaintiff, the littoral proprietor. In 1930 the court, overruling the Kavanaugh case, held, in Hilt v. Weber, that such property belonged to the littoral proprietor. On the basis of this decision the plaintiff brought suit for use and occupation. Held, in the principal case, that the overruling …

Landlord And Tenant - Liability Of A Mortgagee In Possession Of Mortgaged Leasehold For Rent

Michigan Law Review

On default of payments under a mortgage of a leasehold, the mortgagor and mortgagee agreed that the latter was to go into possession of the premises and manage them with a view to meeting the requirements of the mortgage. The mortgagor also executed a warranty deed of the premises to the mortgagee. On default of rent payments the landlord sued the mortgagee. Held, the defendant mortgagee was in possession merely as agent of the mortgagor and as such was not liable for the rent. Cleveland v. Detroit Trust Co., 264 Mich. 253, 249 N. W. 842 (1933).

Bankruptcy - Proof Of Claim For Loss Of Future Rents

Michigan Law Review

A covenant in a lease provided:

" . . . that the filing of any petition in bankruptcy or insolvency by or against the Lessee shall be deemed to constitute a breach of this lease, and thereupon, ipso facto and without entry or other action by the Lessor, this lease shall become and be terminated; and, . . . the Lessor shall forthwith upon such termination be entitled to recover damages for such breach in an amount equal to the amount of the rent reserved in this lease for the residue of the term hereof less the fair rental value …