Delaney v. Manshum

1. Dower — Protection of Bight — Suit by Dowress — Necessity of Assignment — Parties. A widow may maintain a suit to enjoin a continuing trespass on land in which she has a dower right without waiting for the assignment of dower and without joining the other tenants. 2. Same — Bar of Dower — Gonyeyanoe by Husband. No contract of sale or conveyance made by the husband without the signature of the wife will operate to deprive her of her dower. 3. Same — Property Subject — Growing Trees. Growing trees are a part of the realty, so that a widow is entitled to dower in them. 4. Same — Conveyance by Husband — Effect. . All rights of a vendee to whom a husband sells any part of the realty, trees, gravel, clay, or mineral, during his lifetime cease at his death unless the wife joined in the conveyance.

Appeal from Kent; Perkins, J. Bill by Ellen Delaney against Evart J. Manshum and Louis Meier to enjoin a trespass. Defendants filed an answer in the nature of a cross-bill claiming contract rights in certain timber. From a decree for complainant, defendants appeal. This case is before us upon a decree rendered upon the pleadings consisting of complainant’s bill, the answer thereto coupled with a cross-bill, replication to defendants’ answer, answer by complainant to defendants’ cross-bill, and replication 'by defendants to complainant’s answer. Complainant in her bill alleges that she is the owner in fee simple of a piece of land 80 rods long and 2 wide, describing said strip; that she, William, Nellie, Margaret Delaney, and Mary Murphy are the owners in fee simple of 40 acres of land, describing it; that said owners, including complainant, instituted summary proceedings under the statute against the Michigan Elm Hoop & Lumber Company before the circuit court commissioner to recover possession of said 40 acres; that a judgment was rendered therein against said company for the restitution of said 40 acres; that an appeal, was taken by said company to this court and is now pending 1 that on November 15, 1904, the defendants in this case broke and entered said narrow strip of land, breaking the lock and tearing down the gate for the purpose of cutting and hauling away timber and trees from said 40; that in said suit a restraining order was issued, restraining the defendants from cutting the timber; that said restraining order was dissolved as to these defendants because they were strangers to said suit at law, and claimed to be the owners of the timber on. said 40 acres and were lawfully in possession. After the restraining order in such suit at law was dissolved, the complainant filed this bill for an injunction against the continuing trespass and the cutting of the timber. The bill was duly verified, and prayed for an answer without oath. The defendants filed a sworn answer setting up the contract between Kerr Delaney, the husband of complainant, for the sale of the timber on said 40 acres, the assignment of said contract to the defendants, their possession under it, the necessity of a passage over this narrow strip to obtain access to said 40, and its previous use for that purpose. Defendants’ answer admitted that complainant was the owner of said narrow strip of land as the survivor of herself and her deceased husband, who died in October, 1903; that said strip of land was purchased in 1877 for the purpose of obtaining access to said 40. They admitted entering upon the 40 acres, cutting the trees and using the narrow strip for a passageway for themselves and teams. The answer to the cross-bill denied that the defendants obtained any right in or to said premises by reason of the above-mentioned contract and assignment thereof to them. A decree was entered upon these pleadings permanently enjoining the defendants from trespassing upon the lands. in controversy. ' The contract between Kerr Delaney and the Michigan Elm Hoop & Lumber Company, and the assignment thereof to the defendants herein, are as follows: “Grand Rapids, Mich., Oct. 8, 1902. “I, Kerr Delaney, have this day sold to the Michigan Elm Hoop Co. at Grand Rapids, Mich., all the timber except 30 cords that are reserved for said Kerr Delaney to cut out of the tops for 16 in. wood in all for $800.00. Cash $50.00 balance $750.00 to be paid before cutting timber. Timber located 2-^ miles southwest of Eisher, Mich., on Sec. 34. “ Kerr Delaney.” “ Auburn, Ind., Sept. 1, 1903. “We, The Michigan Elm Hoop & L. H. Co., hereby sell to Louis Meier & E. J. Manshum all timber and wood on tract, purchased of Kerr Delaney, located on Sec. 34, as shown in contract with Delaney, and the said Mich. Elm Hoop and Lumber Co., reserve all logs now cut, twenty-four trees, all of which are marked except three oaks, and except 30 cords of 16 in. wood reserved by Delaney and to be cut out of tops as per contract,' and the said Meier & E. J. Manshum to pay $175.00 cash and $175.00 on the 15th of November, 1903, receipt of $175.00 is hereby acknowledged. “ Mich. Elm Hoop & Lumber Co., “ByMcCULLEN. “E. J. Manshum. “ Louis Meier.”