Goodall v. Henkel

Champlin, J.

The declaration in this case is as follows:

“ State of Michigan, County of Wayne, City of Detroit— The Superior Court of Detroit.

“Henry J. Goodall, of Jackson, Michigan, plaintiff herein, by J. S. Dewey, his attorney, comes and files this declaration as commencement of suit, and complains of Peter Henkel, of the city of Detroit, in said State of Michigan, defendant herein: for that, whereas, the said plaintiff, on the sixth day of March, in the yean 1885, was possessed of the following real estate and premises, situate in the city of Detroit, county of Wayne, in said State of Michigan, ana being known and designated as the west twenty feet (20) of the east half of lot thirty-eight (38), in section numbered six (6), in the city of Detroit, in the county of Wayne, and State of Michigan, according to the governor and judges’ plan of said city; and he, the said plaintiff, being so possessed thereof, the said defendant afterwards, to wit, on the ninth (9th) day of March, in said last-mentioned year, entered into said premises, and anlawf ally withholds from said plaintiff the possession there *384 of, to tlie damage of said plaintiff fifty thousand dollars, and! therefore he brings suit,” etc.

“ J. S. Dewey, Attorney for Plaintiff.

“Edgar Weeks, of .Counsel.”

A plea of the general issue and notice of the statute of limitations were interposed, and a trial had, which resulted in a verdict and judgment for the defendant.

The action of ejectment in this State is regulated by statute. Section 7794 of Howell’s Statutes provides that,

“ It shall be sufficient for the plaintiff to aver in his declaration, that on some day therein tobe specified, and which shall be after his title or right accrued, he was possessed of the premises in question, describing them as hereinafter provided ; and, being so possessed thereof, that the defendant afterwards, on some day to be stated, entered into such premises ; and that he unlawfully withholds from the plaintiff the possession thereof, to his damage, any nominal sum the plaintiff shall think proper to state.”

This section must be read in connection with section 7797, which enacts:

“ If the action be brought for the recovery of dower, the-declaration shall state that the plaintiff was possessed of the one undivided third part of the premises, as her reasonable dower as widow of her husband, naming him. In every other case the plaintiff shall state whether he claims in fee, or whether he claims for his own life, or for the life of another, or for a term of years, or otherwise, specifying such lives, or the duration of such term.”

The requirement of this section is mandatory, and the declaration is fatally defective without it complies therewith. The verdict must follow the declaration in this-respect: Section, 7815, sub. 7. In actions for the recovery of real property the declaration must' state the nature and extent of the plaintiff’s claim : Michigan Cent. R. R. Co. v. McNaughton, 45 Mich. 91 ; Kinney v. Harrett, 46 Mich. 90 ; Allie v. Schmitz, 17 Wis. 169 -174 ; Ballance v. Rankin, 12 Ill. 420 : Tyler Ejectm. 39.

The defendant should have demurred to the declaration. *385 Tlie error is such, however, that it calls for an affirmance of the judgment.

We have looked into the errors assigned upon the objections to the validity of the guardian’s sale, and we agree with the judge of the superior court that the five facts required to make the title of the defendant incontestible as against the plaintiff, under section 6102, How. Stat., appear from the record before .us, and therefore the learned judge was right in directing a verdict, for the defendant for that reason. The statute is essentially a statute of repose, and was first incorporated in our laws by the revision of 1838, in exactly the same language in which it exists to-day. It was retained in the revision of 1846, and has continued without1 change until the present time, — a period of nearly fifty years. It has become a rule of property in this State, and it is too late now to challenge its validity on constitutional grounds, if any such exist.

The judgment must be affirmed, and the case remanded to the superior court for the city of Detroit, in order that the plaintiff may take such further action under the'statute as he may be advised.

The other Justices concurred.