Lamberton v. Pawloski , 248 Mich. 330 ( 1929 )

1. Jurisdiction. Should this court decline to consider this case because the circuit court for the county of Berrien, in chancery, had no jurisdiction to enter a decree therein? The strip of land in dispute is of comparatively small value. The record on appeal contains 154 pages. Much expense was necessarily incurred by both parties in the preparation and trial of the case. Unless prevented from doing so by a statute or rule of law firmly imbedded in our jurisprudence, we should dispose of the controversy upon its merits.

In their bill of complaint plaintiffs claim title to the strip in dispute, of which they are in possession, by deed thereof, and also by the acquiescence of the defendants and their grantors in a line marked by a fence erected many years ago as the boundary line thereof. In their amended answer to the bill of complaint, after averring that the occupation and possession of the land in dispute was "without the consent and against the will of the owners of said lot twenty-four (24)," the defendants say:

"That under the stipulation between the parties herein, the rights of said defendants are to be ascertained and determined by the court, and if it is found that the plaintiffs have no right or title to possession of said 16 1/2 feet, then in that event, the said defendants herein, Arnold T. Pawloski and Bessie Pawloski, are entitled to affirmative relief in order to avoid the necessity of the trial of said ejectment suit."

The closing paragraph thereof reads as follows:

"Wherefore, defendants pray that a final decree be entered herein declaring that said defendants, Arnold T. Pawloski and Bessie Pawloski, are the owners in fee of said lot 24, Jacob Beeson's Addition, and that said parties hold said premises free and clear from any right, title, claim or interest of said Ambrose Lamberton and M. Maude Lamberton, and that said final decree direct that said plaintiffs forthwith deliver possession of said premises to said defendants."

In the brief first filed by defendants' attorneys they say:

"The pleadings should be read. The answer puts in issue all the material allegations of the bill. When the case came to be tried, the attorneys agreed that only one case should be tried in order to determine the rights of the parties. Whereupon, in accordance with such stipulation, the defendants amended their answer praying affirmative relief."

The last sentence thereof reads:

"A decree should be entered in this court granting to the defendants the affirmative relief prayed for in their answer."

Upon the record as here made, the defendants should not now be heard to say that they did not voluntarily submit the matter in dispute to the jurisdiction of the trial court, and, having done so, they may not here question the jurisdiction of this court to dispose of the matter.

In F.H. Wolf Brick Co. v. Lonyo, 132 Mich. 162 (102 Am. St. Rep. 412), there was dispute over the location of a boundary line between two parcels of land. Defendant sought to remove the line fence between them, and plaintiff filed a bill to enjoin such action. The defendant answered, denying all the material allegations in the bill. After proofs taken, the trial court —

"did not pass upon the merits of the controversy, but dismissed complainant's bill upon the sole ground that the jurisdiction of a court of equity had not been properly invoked by the complainant."

In reversing the decree, this court said:

"Complainant's bill showed that defendant disputed complainant's title. If he denied the jurisdiction of the court to test the question, it was his duty to demur to the bill. By answering, he voluntarily submitted this question to the court, and cannot now be heard to deny its jurisdiction."

Neither should this court of its own motion raise the question of a lack of jurisdiction on the part of the trial court. This court has many times disposed of cases submitted to it on the merits where it appeared that the plaintiff was in error in seeking the appropriate remedy. In Sterling Bank v.Scott, 231 Mich. 362, in which an action at law, clearly maintainable as such, was transferred to the equity side of the court on application of the defendants, it was said:

"No question is raised as to the propriety of the transfer of the case, and we shall dispose of it as it comes to us as an equity case."

In Cummings v. Schreur, 236 Mich. 628, where a suit was brought to quiet title and the defendant was in possession, it was held that "such a bill may not be filed against one in possession. Ejectment is the action." It was, however, further said:

"Defendant, however, appeared, alleged adverse possession for the statutory period and asked that his title be quieted as against the claims of plaintiffs. This gave the court jurisdiction."

The cases cited and relied upon by Mr. Justice POTTER do not, in my opinion, justify such action on our part. They will be briefly reviewed:

In Kirkwood v. Hoxie, 95 Mich. 62 (35 Am. St. Rep. 549), there was appended to a personal judgment by consent a provision that it become a lien upon certain property, and it was held that jurisdiction to enforce it could not thus be conferred upon the court. In Hull v. Hull, 149 Mich. 500, the parties by agreement provided that the probate court should make allowances to the plaintiff "as her necessities may require," and it was held that the court was without jurisdiction to determine the amounts thereof. In Maslen v.Anderson, 163 Mich. 477, it was held that jurisdiction of chancery courts in divorce proceedings is strictly statutory, and that jurisdiction to make a decree not provided for in the statute could not be conferred by consent. In People v.Meloche, 186 Mich. 536, this court held that "consent could not authorize the court of Baraga county to assume jurisdiction over the subject-matter of an offense committed, if at all, elsewhere than in that county."

In Mansfield, etc., R. Co. v. Swan, 111 U.S. 379 (4 Sup. Ct. Rep. 510), it appeared that a diversity of citizenship, on which the right of removal from the State to the Federal court depended, did not exist at the time the suit was begun. As the jurisdiction of the latter court depended thereon, and the "want of jurisdiction appears affirmatively from the record," it was held to be error for the trial court to assume jurisdiction and not to remand it. A similar question was presented and decided in the same way in Morris v. Gilmer,129 U.S. 315 (9 Sup. Ct. Rep. 289).

I do not question the right of a defendant to raise the question of jurisdiction. But, when such jurisdiction is conceded in the answer and in the brief filed in support of the contention that the defendants should have had a decree in their favor, I am unwilling to assent to this court of its own motion rendering a decision reversing the decree entered and dismissing the bill for a lack of jurisdiction in the trial court to adjudicate the matter in dispute.

But in my opinion the court did have jurisdiction. Jurisdiction is conferred upon the circuit courts, in chancery, in 3 Comp. Laws 1915, § 12302, subsec. 4:

"To hear and determine suits instituted by any person claiming the legal or equitable title to lands, whether in possession or not, against any other person not in possession, setting up a claim thereto in opposition to the title claimed by the plaintiff: And, if the plaintiff shall establish his title to such lands, the defendant shall be decreed to release to the plaintiff all claims thereto."

This provision with a slight change, not here important, has been a part of our law since 1840. In the early case ofStockton v. Williams, Walk. Ch. 120, in which a proceeding was brought under it, Chancellor MANNING said, at page 127:

"The object of the statute seems to be to enable a person in possession of real estate, and having a title thereto, to remove all doubts in regard to his title arising from the claims of third persons who are taking no steps to test the validity of their claim, either at law or in equity, and who, by their refusal or neglect to institute proceedings for that purpose, keep the party in possession in a state of suspense."

In Moran v. Palmer, 13 Mich. 367, 370, it was said:

"A bill to quiet title on behalf of the legal owner, is only entertained where the party is not in a position to force the adverse claimant into a court of law to test its validity."

In King v. Carpenter, 37 Mich. 363, 366, the court said:

"The statute (2 Comp. Laws 1871, § 5072) was designed to enlarge the powers of equity in regard to quieting title by allowing a decree in favor of a party in possession without the necessity of repeated trials at law. Where complainant's rights are strictly legal he has no means of enforcing them at law against a party out of possession, and cannot compel him to bring an action. If therefore the party not in possession neglects or refuses to bring an action, and prefers to wait for the chances of loss of testimony or other casualty, to gain an advantage over the possessor, the statute enables the latter to bring him in as a defendant and compel him to establish his claims or be barred."

In Methodist Church of Newark v. Clark, 41 Mich. 730, 738, the court said:

"The bill is a bill to quiet title. A bill for that purpose is based upon an actual possession by complainant of the land in dispute, and when sustained, it is upon the ground that complainant has no other means of bringing his title to an adjudication."

In Carpenter v. Dennison, 208 Mich. 441, after quoting subsection 4 of section 12302, it was said:

"While this subdivision of the section in its present form is the result of amendments, it originally was enacted in 1840 (Act No. 76, Laws 1840, p. 127). It has generally been recognized as declaratory of recognized jurisdiction of the courts of equity with amplification of their powers, and its object has been recognized by this court to be to enable one in possession of real estate (now including one out of possession where the other party is also out of possession) to remove all doubts as to his title caused by claims of third persons who are taking no steps to test the validity of their claim and who by their refusal or neglect to take proceedings to have their title adjudicated cast a doubt upon the title which without the interposition of a court of equity remains a cloud upon such title to the injury of the true owner."

These decisions well illustrate the holding of this court in cases where other than the location of the true boundary line was involved. The recent case of Maes v. Olmsted, 247 Mich. 180, is, I think, decisive of the question under consideration. The plaintiffs were in possession of a strip of land claimed to be owned by defendants by reason of a recent survey of the line between their respective lots. Defendants brought ejectment. Plaintiffs thereupon filed a bill to restrain the prosecution of the ejectment suit and to quiet their title to the strip in dispute, and were granted relief by reason of "acquiescence arising out of the practical location of a boundary line by a common grantor." In disposing of the claim that the action in equity would not lie, Mr. Justice FEAD said:

"This action in equity will lie, both because judgment for these plaintiffs in the ejectment suit would still leave an outstanding record title to the strip in defendants, Flint,etc., R. Co. v. Gordon, 41 Mich. 420; Eaton v. Trowbridge,38 Mich. 454, and because other lands are included in this action than are involved in the ejectment suit, and a multiplicity of suits may be avoided, Woods v. Monroe, 17 Mich. 238. The jurisdiction of equity to quiet title is also provided by 3 Comp. Laws 1915, § 12302."

While two reasons were assigned, there is no intimation that the one first stated was not sufficient.

2. Merits. The plaintiffs offered proof that a division fence had been maintained between the property of which they are now in possession and that part of it claimed by defendants for more than 15 years and acquiesced in by the defendants and their grantors as the true boundary line between these properties. The trial court so found. It will serve no useful purpose to further lengthen this opinion by quoting from or reviewing the testimony on which he based this decision. While there is dispute as to the establishment of and acquiescence in the line, the testimony of several of plaintiffs' witnesses who have long been familiar with the boundaries of these lots clearly creates a preponderance in favor of such holding. The effect of acquiescence in a boundary line was before this court in the recent case ofHanlon v. Ten Hove, 235 Mich. 227 (46 A.L.R. 788). It was there said:

"While acquiescence alone is not a defense, if acquiescence follows the resolving of a doubt as to where the line is or the settlement of a bona fide controversy, which settlement agreement contemplates an agreed line, and the monuments of such line are fixed and maintained thereafter, such line so established and acquiesced in is the line, and the acquiescence need not continue for the statutory period; likewise where the line is acquiesced in for the statutory period it is also fixed."

See, also, Maes v. Olmsted, supra.

The decree is affirmed, with costs to appellees.

FEAD, BUTZEL, and CLARK, JJ., concurred with SHARPE, J.