DocketNumber： Docket No. 151342
Judges： Bernstein, Larsen, Markman, McCormack, Viviano, Young, Zahra
Filed Date： 6/23/2016
Status： Precedential
Modified Date： 11/10/2024
We consider here whether a homeowner, or another person rightfully possessing a home,
We conclude that our larceny law prohibits the wrongful dispossession of property, protecting an individual’s possessory interests from a wrongful taking. Because defendant held the exclusive possessory right in the home, including its fixtures, at the time of the alleged larceny, he could not have wrongfully dispossessed anyone else, including the foreclosure-sale purchaser, of rightful possession of that property. Accordingly, he could not have committed larceny of the fixtures. We therefore reverse the judgment of the Court of Appeals and reinstate the trial court’s dismissal of the criminal charges.
Defendant’s father owned a home in Westland, Michigan, which secured a mortgage loan. In July 2011, he granted defendant a power of attorney that gave defendant the right “to possess, recover, manage, hold, control, develop, subdivide, partition, mortgage, lease or otherwise deal with any real property belonging” to his father. Additionally, defendant could “dispose of any real property” or personal property. Around this time, defendant’s father also took up residence at an assisted-living home. Subsequently, the mortgage loan on the Westland home fell into default. The mortgagee eventually foreclosed, and on August 9, 2012, the home was sold at a sheriffs sale to John Hamood for $33,425.80.
Hamood inspected the home on February 10, 2013, the day after the redemption period expired. Inside, he noticed various items missing, including kitchen cabinets, the kitchen countertop, a furnace, duct work,
Defendant was arrested and charged in a criminal information with two counts: committing larceny in a dwelling house, MCL 750.360, “by stealing counter tops, sink, furnace, doors, hot water heater, grab bars, [and] cabinets,” and receiving, possessing, or concealing stolen goods worth more than $200 but less than $1,000, MCL 750.535(4)(a). In June 2013, defendant filed his first motion to quash the information, setting forth alternative arguments. First, he argued that fixtures were not the proper subject of larceny; that is, that one could not commit larceny of a fixture. Second, he argued that he could not have wrongfully taken property of another because he retained legal title and the right of possession throughout the redemption period, during which time the removal of the fixtures had occurred.
We heard oral argument on the application under MCR 7.302(H)(1) on the following two questions:
(1) whether the removal of fixtures by a mortgagor from the mortgaged premises after a sheriffs sale but prior to the expiration of the redemption period may subject the mortgagor to criminal liability for larceny; and (2) whether fixtures taken from real property may be the*397 subject of larceny under MCL 750.356(1). [People v March, 497 Mich 1041 (2015).]
II. STANDARD OF REVIEW
A trial court’s decision to quash an information is reviewed for an abuse of discretion. People v Dowdy, 489 Mich 373, 379; 802 NW2d 239 (2011). An abuse of discretion occurs when the trial court “chooses an outcome that falls outside the range of principled outcomes.” People v Musser, 494 Mich 337, 348; 835 NW2d 319 (2013). However, “[t]his Court reviews de novo questions of statutory interpretation.” People v Gardner, 482 Mich 41, 46; 753 NW2d 78 (2008). Thus, “[t]o the extent that a lower court’s decision on a motion to quash the information is based on an interpretation of the law, appellate review of the interpretation is de novo.” People v Miller, 288 Mich App 207, 209; 795 NW2d 156 (2010), citing People v Stone, 463 Mich 558, 561; 621 NW2d 702 (2001).
III. ANALYSIS
We begin as always by examining the language of the relevant statute, MCL 750.360. As will become clear below, this language leads us in turn to the common-law background of larceny, which we then must also examine.
A. INTERPRETATION
The resolution of this case depends on the proper interpretation of MCL 750.360, which criminalizes larceny in a building. “The Court’s responsibility in interpreting a statute is to determine and give effect to the Legislature’s intent.” People v Lowe, 484 Mich 718, 721; 773 NW2d 1 (2009). The statute is the
When, however, an undefined term is one that has “a settled, definite, and well known meaning at common law,” we will assume that the Legislature adopted that meaning “unless a contrary intent is plainly shown.” People v Covelesky, 217 Mich 90, 100; 185 NW 770 (1921), superseded by statute on other grounds as recognized by People v Smith-Anthony, 494 Mich 669, 697 n 11; 837 NW2d 415 (2013); see also People v Young, 418 Mich 1, 13; 340 NW2d 805 (1983). “[T]ech-nical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.” MCL 8.3a. Thus, common-law terms adopted in statutes will be applied in the same manner in which they were applied at the time they were codified. People v Riddle, 467 Mich 116, 125-126; 649 NW2d 30 (2002).
B. MCL 750.360
Our analysis then begins with the language of MCL 750.360, the statute under which defendant was charged with larceny:
*399 Any person who shall commit the crime of larceny by stealing in any dwelling house, house trailer, office, store, gasoline service station, shop, warehouse, mill, factory, hotel, school, barn, granary, ship, boat, vessel, church, house of worship, locker room or any building used by the public shall be guilty of a felony.
The statute leaves larceny undefined, so we next turn to the so-called “simple larceny” statute, MCL 750.356, which implicates the “crime of larceny” referred to in MCL 750.360. People v Adams, 128 Mich App 25, 31-32; 339 NW2d 687 (1983) (labeling the statute as “simple larceny”). MCL 750.356 establishes the general crime of larceny:
(1) A person who commits larceny by stealing any of the following property of another person is guilty of a crime as provided in this section:
(a) Money, goods, or chattels.
(b) A bank note, bank bill, bond, promissory note, due bill, bill of exchange or other bill, draft, order, or certificate.
(c) A book of accounts for or concerning money or goods due, to become due, or to be delivered.
(d) A deed or writing containing a conveyance of land or other valuable contract in force.
(e) A receipt, release, or defeasance.
(f) A writ, process, or public record.
(g) Scrap metal.
As this Court observed in addressing a predecessor to MCL 750.356, “[w]e have no statutory definition of larceny, and all our statutes use it in its common law sense.” Morrissey v People, 11 Mich 327, 336 (1863). More recently, the Court of Appeals reiterated this proposition: “There is no statutory definition of larceny in Michigan and all statutes use the term in its
These articulations of the common law can be parsed in turn into the following elements: (a) a trespassory taking and (b) the carrying away (c) of the personal property (d) of another (e) with intent to steal that property.
The dispute in the present case centers on element (d), whether the fixtures defendant took constituted the “property of another.”
C. “PROPERTY OF ANOTHER” AT COMMON LAW
At common law, “property of another” referred to property that “another” had the right to possess as against the defendant at the time of the taking. In other words, if at the time of the taking someone other than the defendant had the right to possess the property to the exclusion of the defendant, then it constituted the “property of another.” It followed that if the defendant had the right to possess the property as against the complainant at the time of the taking, no larceny could occur.
The focus on protection of possessory rights is first reflected in the prohibition of trespassory takings, which forms the core of larceny’s common-law roots. As noted, common-law larceny was defined as the “unlawful taking of the personal property of another with the felonious intent to deprive the owner of it.” Johnson, 81 Mich at 576. It was the unlawful, or trespassory, “taking” that defined the fundamental nature of the crime: “[t]he principal factor which limited the scope of larceny was the requirement that the thief must take it from the victim’s possession; larceny requires a ‘trespass in the taking,’ as the matter is often stated.” 3 LaFave, Substantive Criminal Law (2d ed), § 19.1(a), p 57. Or as another scholar noted, the “change of possession has from the earliest times been essential to larceny; so that there can be no larceny where there is no trespass.” 3 Holdsworth, A History of English Law
In order for the taking to be trespassory, the goods taken had to be the “property of another.” An early-nineteenth-century treatise expressed this idea by emphasizing the victim’s possessory rights: “the goods, when taken, must be either actually or constructively in the possession of another . ...” 1 Robinson, Introduction of a Justice of the Peace to the Court of Quarter Sessions of the Peace (1836), p 107. Another nineteenth-century treatise expounded on this point, distinguishing proprietary rights and possessory rights and asserting that the latter were protected from criminal misappropriation by the crime of larceny: “the misappropriation of property operates not by transferring proprietary rights, but by transferring the power of actual enjoyment of those rights, i.e. by dealing with the possession or custody of the thing to which they are attached . ...” 3 Stephen, History of the Criminal Law of England (1883), at 124.
What makes the dispossession wrongful is that the person from whom the property is taken holds the right to possess it as against the defendant at the time of the taking. This aspect of the definition of “property of another” is reflected by two rules developed by the courts: (a) an individual in the rightful possession of property could not steal it; and (b) anyone in the rightful possession could be viewed as the “owner” for purposes of larceny.
The first rule is that a person in the rightful possession of property cannot steal it. See LaFave, §§ 19.1 and 19.2. “[Larceny] is an offence against a possessor and therefore can never be committed by a possessor.” Pollock & Maitland, p 498 (emphasis added). Thus, for example, “where a man has goods in his possession
The second common-law rule is related to the first: one in the rightful possession of property, such as a bailee, could be considered the “owner” as against anyone else who took the goods from his possession. Because, as Lord Blackstone explained, bailees had “immediate possession,” they were “entitled to an action ... on account of [their] immediate possession . . . .” Blackstone, p *396; see also Matthews, Digest of the Law Relating to Offences Punishable by Indictment, and by Information in the Crown Office (1833), pp 300-301 (noting that the “bailee, pawnee, lessee for years, carrier, or the like” could be characterized as the owner in a larceny indictment). As one scholar has noted, either the bailor or bailee could be considered the “owner” for purposes of larceny because the “property is still in” the true owner, but the bailee “hath the possession . . . and hath the property against
Taken together, these rules communicate that “property of another” requires that someone other than the defendant holds the right to possess the property to the exclusion of the defendant at the time of the taking. To determine whether “another” holds such a possessory right, courts employing the common law have engaged in an examination and comparison of the property rights held by the defendant and other relevant parties when the taking occurred, looking to various rights-defining sources such as statutes to inform that assessment. See, e.g., People v Zinke, 76 NY2d 8, 10-14; 556 NYS2d 11; 555 NE2d 263 (1990) (noting that the legislature codified the common-law definition of “property of another” and relying on statutes to determine relevant property rights); Murphy v State, 453 NE2d 219, 221
D. MICHIGAN LAW
Our state’s caselaw reflects the common-law notion that the “property of another” requirement for larceny contemplates protecting the possessory rights of “another” who at the time of the taking holds a right to possess the property as against the defendant. As a result, a person in rightful possession of the property at the time of the taking cannot commit larceny by taking that property.
This Court has made clear that establishing larceny as a crime was intended to protect possession. One of the ways we have done so is by recognizing that the law of larceny prohibits trespassory takings. As noted above, “trespass” at common law “simply meant taking a chattel from one who had possession of it.” Hall, p 6. If there is no trespass because the defendant initially received possession lawfully, then larceny has not occurred. For this reason, in People v Taugher, 102 Mich 598, 601; 61 NW 66 (1894), this Court overturned a larceny conviction in which the defendant’s “possession was lawful until the [owner’s] demand” for return
More directly, we have declared that possession, and not title ownership, is the determinative requirement in larceny crimes. In Christenson, 412 Mich at 87, we observed, “As with common-law larceny, larceny by conversion [MCL 750.362] is a crime against possession and not against title . . . .” This statement not only communicates that the law of larceny protects an individual’s possessory rights, but further supports the proposition that property is “of another” when someone other than the defendant has a right to possess that property as against the defendant, regardless of whether that person possesses title to it. 50 Am Jur 2d, Larceny, § 18, p 29 (citing Christenson in support of this specific rule); Tiffany, A Treatise on the Criminal Law of the State of Michigan (5th ed. 1900), p 915 (“The person alleged in the indictment to be the owner must, also, have, at the time of the taking, either the actual or constructive possession of the goods.”).
Further supporting this conclusion is this Court’s decision in People v Jacks, 76 Mich 218; 42 NW 1134 (1889), which Hatch cited. In Jacks, we held that “the fact of non-consent to the taking may ... be proved by any other person having knowledge of the facts as well as by the owner or the person having control of the property at the time . . . .” Id, at 221 (emphasis added). This suggests that larceny can occur by the dispossession of a rightful possessor of the property, even if that person is not the title owner. It is thus reasonably well established that the rightful possessor of property can constitute its “owner” for purposes of larceny. Or, more accurately, the property is “of another” if another rightfully possesses it.
Our caselaw has also recognized that in order to constitute “property of another,” “another” must hold rightful possession as against the defendant at the time of the taking. In People v Long, 50 Mich 249; 15 NW 105 (1883), for instance, the defendant’s buggy was held by a man named William Gilbert pursuant to a lien. Id. at 250. This Court held that the defendant, although the true owner, was guilty of larceny where he had “secretly removed” the buggy from Gilbert’s possession. Id. “Gilbert had a lien upon the buggy . . . and was rightfully in possession.” Id. at 251 (emphasis added). Accordingly, this Court upheld the larceny conviction. Id.
The same reasoning runs through Court of Appeals cases, the most prominent of which is People v Sheldon, 208 Mich App 331, relied on by the Court of Appeals in the instant case. In Sheldon, as in Long, the larcenist owned the property he stole, which consisted of two impounded Cadillacs held at a car lot. Id. at 333-334. He was charged with two counts of simple larceny, MCL 750.356, which the trial court quashed because the lot did not own the cars. Id. The Court of Appeals disagreed, citing Hatch, 156 Mich App at 267, and Model Criminal Jury Instruction 22.2 to establish that the “owner” for purposes of larceny was not necessarily the title owner. Instead, it noted that the owner could be the “ ‘actual owner’ ” or “ ‘any other person whose consent was necessary before the property could be taken.’ ” Sheldon, 208 Mich App at 334-335, quoting M Crim JI 22.2. The Court did not engage in an analysis of the lot’s right to consent in the abstract, but grounded its analysis in whether the lot had a right to possess the cars. Id. at 334-337. Specifically, the Court stated that the relevant question was “whether the wrecker service enjoyed a right of possession sufficient to support a larceny charge at the time the vehicles were removed from the wrecker service’s
Accordingly, Sheldon, as with Long, comports with the common-law proposition that property constitutes the “property of another” when someone holds the right to possess it as against the defendant at the time of the taking. In order to reach this conclusion, Sheldon canvassed the relevant statutes defining the rights of the respective parties in the property at the time of the taking and assessed with whom rightful possession of the property lay—an analysis consistent with the common-law approach discussed previously. See, e.g., Zinke, 76 NY2d at 10-14.
IV. APPLICATION
To apply these rules in the instant case, we must determine the parties’ respective interests in the property during the redemption period. As demonstrated, for defendant to have properly been charged with larceny, the facts must demonstrate that defendant, in removing the fixtures, took the “property of another.” And for the fixtures to have been the “property of another,” someone other than defendant—in this case, Hamood—must have held the right to possess the property to the exclusion of defendant at the time of the taking. Hamood could hold such an interest only from his purchase at the foreclosure sale. In our judgment, no possessory rights inhered in Hamood as a result of the sale. Defendant, on the other hand, retained the exclusive possessory rights in the fixtures
A. RESPECTIVE RIGHTS
In order to ascertain the parties’ rights to possession, it is first necessary to briefly define possession. “Possession” is defined as “ ‘1. [t]he fact of having or holding property in one’s power; the exercise of dominion over property. 2. [t]he right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object.’ ” People v Flick, 487 Mich 1, 12; 790 NW2d 295 (2010), quoting Black’s Law Dictionary (7th ed).
Turning to the present case, the parties do not dispute that the items taken were fixtures subject to the foreclosed-on mortgage. Fixtures intentionally annexed to real property “bee [o] me part of the mortgage security, and, upon foreclosure sale, title [to them] passe [s] with the realty.” Sequist v Fabiano, 274 Mich 643, 646; 265 NW 488 (1936). Thus, whatever rights the complainant had in the fixtures arose from his purchase.
A foreclosure-sale purchaser receives a deed at purchase, which vests title at the end of the redemption period if the mortgagor fails to redeem. The deed is described in MCL 600.3236 as follows:
Unless the premises described in such deed shall be redeemed within the time limited for such redemption as hereinafter provided, such deed shall thereupon become operative, and shall vest in the grantee therein named, his heirs or assigns, all the right, title, and interest which the mortgagor had at the time of the execution of the mortgage, or at any time thereafter, except as to any parcel or parcels which may have been redeemed and canceled, as hereinafter provided; and the record thereof shall thereafter, for all purposes be deemed a valid record of said deed without being re-recorded, but no person having any valid subsisting lien upon the mortgaged premises, or any part thereof, created before the lien of such mortgage took effect, shall be prejudiced by any such sale, nor shall his rights or interests be in any way affected thereby. [Emphasis added.]
Following the sale, the mortgagor has a period of time during which to redeem the property by paying the amount of the successful bid, interest on that amount, and various fees. MCL 600.3240(1) and (2). If the property is not redeemed within that period—six months in this case, MCL 600.3240(8)—the title to the
The purchaser’s rights during the redemption period have been variously described as an inchoate or contingent equitable interest, but it has never been suggested that this interest constitutes a possessory right, let alone one that permits the purchaser to exclude the mortgagor from possession. This Court has held that the purchaser acquires “an inchoate right to the land,” subject to defeat by redemption. Stout, 2 Doug at 187. The purchaser’s right to absolute title is “consummated” only if the premises go unredeemed. Id. During the redemption period, the deed “was in the nature of an escrow; and, if not defeated by redemption, related back to the time of the purchase . . . .” Id. at 187-188. More recent cases summarily label the purchaser’s
A foreclosure of a mortgage extinguishes it. When the amount due under the mortgage is paid to the mortgagee by the purchaser at the sheriff’s sale, the lien is destroyed, and the purchaser becomes the owner of an equitable interest in the mortgaged premises which ripens into a legal title if not defeated by redemption as provided by law. It is not a “lien, incumbrance or mortgage” which the purchaser at a foreclosure sale acquires, but it is an interest or title, equitable in character, and with nothing to be done on his part to make it absolute if it is not redeemed within the period of time prescribed by law.
This represents the prevailing characterization of the purchaser’s interest. See, e.g., In re Receivership of 11910 South Francis Rd, 492 Mich at 223. Thus, only after the mortgagor fails to redeem does the purchaser’s interest “ripenO into a legal title[.]” Dunitz, 236 Mich at 49.
During the pendency of the redemption period, the purchaser’s rights and responsibilities are considerably circumscribed, with the purchaser entitled to few, if any, of the rights accompanying ownership. Most relevantly for purposes of larceny, the purchaser lacks possessory rights, which continue in the mortgagor until the period expires. As early as 1936, we remarked upon “the definite and continuous policy of this State to save to mortgagors the possession and benefits of the mortgaged premises, as against the mortgagees, until expiration of the period of redemption.” Mass Mut Life Ins Co v Sutton, 278 Mich 457, 461; 270 NW 748 (1936).
[T]he bank [which purchased the property] had no legal right of possession during the six-month redemption period. It is certainly true . . . that the Hineses, as mortgagors, had the authority to place the mortgagee-bank in possession of the premises. However, we have consistently given careful scrutiny to any transaction in which a mortgagor waives its statutory right of redemption. [Id. at 660.]
The fact that the bank was the high bidder at foreclosure proceedings did not grant it any rights of ownership or possession, but, rather, gave the bank a contingency interest in the property with respect to title ownership. Accordingly, any interest the bank had would not vest until after expiration of the redemption period. [Id.]
Similarly, the statutory framework addressing the purchaser’s rights during the redemption period supports the conclusion that purchasers lack possessory rights. The Legislature has crafted a limited set of rights purchasers may enjoy during the redemption period; none of these suggests that the Legislature intended to grant the purchaser possessory rights. Following the sale, the purchaser can conduct inspections of the property only by complying with the numerous provisions in MCL 600.3237 and MCL 600.3238.
B. RESOLUTION
The above analysis leads to the conclusion that defendant here could not have committed larceny of the fixtures because he had the right to possess the house, and thus also its fixtures, at the time of the alleged larceny. Larceny can occur only when personal “property of another” has been taken by trespass. To constitute “property of another,” the “goods, when taken, must be either actually or constructively in the possession of another].]” Robinson, p 107. Moreover, the person with possession must have the right to possess the property to the exclusion of the defendant. Long, 50 Mich at 251; Sheldon, 208 Mich App at 334-336. It follows that one in
This means that for defendant to have committed larceny, Hamood must have held a right to possess the property to the exclusion of defendant. But Hamood did not hold such a right. As the foreclosure-sale purchaser, he held equitable title to the property during the redemption period, which gave him no possessory rights. Dunitz, 236 Mich at 49. Defendant, by contrast, held legal title and, critically for our purposes, the sole right to possess the property. Kubczak, 456 Mich at 660-661. Therefore, defendant could not by taking the property have trespassed upon the “property of another,” because no one else had the right to possess it at that time. Consequently, defendant’s actions did not constitute a trespassory taking of the “property of another” and did not constitute larceny under MCL 750.360. And because the property was not stolen, defendant did not receive, possess, or conceal stolen goods. MCL 750.535(4)(a). Accordingly, we must reverse the Court of Appeals and reinstate the trial court’s dismissal of the charges against defendant because he cannot be guilty of offenses under either MCL 750.360 or MCL 750.535(4)(a).
V. COURT OF APPEALS
In reaching a contrary conclusion, the Court of Appeals, we believe, erred in two respects: (a) it focused on Hamood’s purported right to consent rather than on his
The Court of Appeals’ threshold error was in assuming that Hamood was the “owner” of the fixtures for purposes of larceny—and thus that the fixtures constituted the “property of another” with respect to defendant—by virtue of Hamood’s supposed “right to consent” to their removal, rather than by examining his specific possessory rights. This use of “consent” as the basis for ascertaining Hamood’s interests for purposes of larceny is inapt because it fails to address why Hamood enjoyed the right, or the authority, to consent or to deny consent for a particular taking. That is, an individual is not considered to “own” property because he or she may consent to its taking; rather, particular interests encompass the right to consent. Consent is an attribute or function of some property interests, derived from a right to control the property, which in turn is an attribute or function of the right to possession of the property. Hence, “consent” is an amorphous and imprecise concept except to the extent that it serves as a proxy for the actual right to possession.
Furthermore, to the extent that the court’s analysis of consent was intended to serve as a proxy for the right to possession, it is unpersuasive because neither of the sources of legal authority on which the court relied gives rise to the right to possession. The first source relied on by the Court of Appeals was MCL 600.3278. However, this statute fails to endow the purchaser with a posses-sory right, let alone a possessory right that permits the purchaser to dispossess the mortgagor. Rather, the statute provides the purchaser with a civil remedy if the mortgagor damages the property during the redemption period:
*424 During the period of redemption following a foreclosure sale of property under this chapter, the mortgagor and any other person liable on the mortgage is liable to the purchaser at the sale, or the mortgagee, payee, or other holder of the obligation secured by the mortgage if the mortgagee, payee, or other holder takes or has taken title to the property at the sale either directly or indirectly, for any physical injury to the property beyond wear and tear resulting from the normal use of the property if the physical injury is caused by or at the direction of the mortgagor or other person liable on the mortgage. [MCL 600.3278(1).]
Nowhere does this statute purport to create a right to possession. Indeed, the statute itself indicates to the contrary, providing that “[a]n action for damages under this section may be joined with an action for possession of the premises under [MCL 600.5701 et seq.].” MCL 600.3278(5). The “action for possession” refers to summary proceedings for obtaining judgments of possession and includes situations in which the person in possession “causes extensive and continuing physical injury to the premises [.] ” MCL 600.5714(l)(d). This action thus complements an action for possession, but does not give rise to a right to possession. Nor indeed does the statute purport even to prohibit damage to, or removal of property from, the premises. Rather, it purports only to provide a civil remedy or recourse to a purchaser when such damage occurs. The statute does not grant possessory rights in the property as a predicate for larceny.
The second source relied on by the Court of Appeals was the equitable title held by Hamood as a result of the foreclosure sale. This also does not suffice to grant him the possessory rights necessary to establish larceny. As discussed earlier, the Court of Appeals did not analyze in any depth the limited nature of the equitable title derived from the sale, which clearly
The prosecutor now offers an additional reason why the court below reached the correct result based on Hamood’s equitable title. Relying on the relation-back doctrine, the prosecutor claims that because this title related back to the foreclosure-sale date, defendant “at the very least” trespassed on Hamood’s constructive possession, if not also on his actual possession, “since the redemption option was never [in the end] exercised.” In support of this proposition, the prosecutor cites Wells Fargo Bank, 304 Mich App at 590-594, in which a foreclosure-sale purchaser was held liable for condominium fees and assessments accruing from the purchase date.
But Wells Fargo in particular, and the relation-back doctrine in general, are inapposite. Regarding Wells Fargo, that decision turned on the Condominium Act, MCL 559.101 et seq., which specifically provided that the foreclosure-sale purchaser was not liable for condominium assessments “ ‘that became due prior to the acquisition of title to the [property] by that . . . purchaser.’ ” Wells Fargo, 304 Mich App at 590-591, quoting MCL 559.158. The Court thus held that the purchaser was responsible for dues accruing after he acquired title. This occurred when the purchaser took the equitable title, as the Act did not require the acquisition of “absolute title.” Id. at 592-593. Although the Court noted that the relation-back doctrine also supported its analysis, it expressly stated, “Our analysis of the [Act] is not reliant upon the relation-back doctrine.” Id. at 593.
Moreover, the doctrine cannot reasonably afford a basis for finding larceny here because it is premised
Further, this Court has held that the relation-back doctrine is “remedial, and its use in the law is to prevent wrongs and punish trespasses. ... As has been repeatedly declared in this court, it can never be so applied as to make that a wrong which was innocent when done . . . .” Flint & PM R Co v Gordon, 41 Mich 420, 431; 2 NW 648 (1879). Thus, it cannot be used as proposed here because to do so would render the mortgagor’s actions “wrong” only on the basis of subsequent circumstances, imposing criminal liability on actions that when they took place were not criminal.
VI. CONCLUSION
The outcome in this case is mandated by MCL 750.360’s adoption of the common law of larceny, which protects possessory rights. At the time defendant removed the fixtures, only he held possessory rights in these, and the complainant held no such rights. Accordingly, defendant could not have committed larceny by removing the fixtures. Absent a proper larceny charge, the fixtures were necessarily not “stolen” goods. Therefore, the charge of receiving or possessing stolen goods must fail as well. For these reasons, we reverse the Court of Appeals judgment
Despite the failure of the larceny charge in this case, it is possible that defendant’s actions might properly give rise to alternative criminal offenses. The prosecutor here has indicated a belief that defendant may be guilty of at least two other offenses: embezzlement, MCL 750.181(1), and malicious destruction of property, MCL 750.380. We do not here opine on the applicability of either of these, or any other criminal offense, to defendant’s conduct. Additionally, a foreclosure-sale purchaser such as Hamood is not without recourse, as he has various civil remedies. One is MCL 600.3278(1), which provides a foreclosure-sale purchaser with the right to pursue damages against a mortgagor who causes injury to the property during the redemption period. Another is the procedure set forth in MCL 600.3237 and MCL 600.3238, which enables the purchaser to inspect the property and institute summary
The affidavit of the foreclosure-sale purchaser indicates that Vonelle Ventures, LLC was the actual purchaser. It appears that Hamood operates and owns Vonelle.
In a third argument, defendant contended that the record lacked any evidence that he had a felonious intent. The courts below did not address this contention, and we likewise decline to opine on defendant’s intent, given that he prevails here regardless of his intent.
Subsequent statutes mirror this definition, with only immaterial distinctions in phrasing. See, e.g., 1846 RS, ch 154, § 18 (“Every person who shall commit the offence of larceny, by stealing of the property of another, any money, goods or chattels . . . 1882 CL, ch 318, § 9140 (same but for spelling of “offense”); 1897 CL, ch 320, § 18 (same); 1915 CL, ch 257, § 17 (“Every person who shall commit the offense of larceny by stealing from the person of another . . . .”); MCL 750.356 (1948) (“Any person who shall commit the offense of larceny, by stealing of the property of another, any money, goods or chattels . . . .”); MCL 750.356 (1970) (“Any person who shall commit the offense of larceny, by stealing, of the property of another, any money, goods or chattels . . . .”). Indeed, the current statute reflects even earlier statutes defining larceny in the Northwest Territory. In 1795, the territorial government adopted Pennsylvania’s larceny statute, which punished those who had “feloniously stolen any money, goods or chattels . ...” A Law for the Trial and Punishment of Larceny, June 5, 1795, Laws of the Territory of the United States North-West of the Ohio (1796), p 41. After Michigan became an independent territory, it enacted a statute in 1818 proscribing larceny, “if any person shall steal any money, goods, or chattels, . . . [that person] shall be fined ... or whipped . . . .” 2 Territorial Laws, Act of July 27, 1818, § 1, p 138. Thus, the current statute tracks the original larceny enactments dating back two centuries, all of which left larceny undefined.
Randolph was superseded by statute on other grounds as recognized by Smith-Anthony, 494 Mich at 686 n 60.
This definition mirrors those found in numerous treatises. In one leading work, larceny is defined as “the (1) trespassory (2) taking and (3) carrying away of the (4) personal property (5) of another (6) with intent to steal it.” 3 LaFave, Substantive Criminal Law (2d ed), § 19.2, p 62; see also Saltzman, § 7-2(a), pp 628-529. Sir Edward Coke stated that “[l]arceny, by the common law, is the felonious and fraudulent taking and carrying away by any man or woman, of the meere personall goods of another . ...” 3 Coke, Third Part of the Institutes of the Laws of England (1797), p 107. See also 1 Hale, History of the Pleas of the Crown (1800), p 503 (using Coke’s definition); 1 Hawkins, Treatise of the Pleas of the Crown (1716), p 89. An even older source defined the offense as “the treacherous taking of a corporeal movable thing of another, against the will of him to whom it belongs, by evil acquisition of possession or of the use.” Horn, The Mirror of Justices (1895 Selden Society ed), p 25. See also 3 Torcia, Wharton’s Criminal Law (15th ed), p 347 (“At common law, larceny is the trespassory taking and carrying away of the personal property of another with the intent permanently to deprive.”).
The Court of Appeals has formulated an essentially identical test for larceny:
(1) an actual or constructive taking of goods or property, (2) a carrying away or asportation, (3) the carrying away must be with a felonious intent, (4) the subject matter must be the goods or personal property of another, (5) the taking must be without the consent and against the will of the owner. [Anderson, 7 Mich App at 513, 516.]
While this phrasing contains the term “owner,” as we will explain, it is used here with imprecision, and in the broader context of the development of the common law of larceny in Michigan, it should not be read to suggest that the law of larceny protects only those who hold title or an equitable interest in property. Rather, the law of larceny focuses on the wrongful dispossession of property; that is, the law of larceny protects possessory rather than proprietary interests. Thus, to be precise, we employ the more traditional phrasings referring to “property of another” and “trespassory” takings, rather than the words “owner” and “consent.”
For purposes of this appeal, the parties do not dispute that defendant removed and carried away the property in controversy or that the alleged larceny occurred in a “building” for purposes of MCL 750.360. Nor do they dispute the property’s characterization as “fixtures,” at least before their severance from the house.
We use Stephen’s terminology in this opinion to distinguish between “proprietary” and “possessory” rights. We will define the latter term below, but here we take the opportunity to note that we use proprietary rights in distinction to possessory rights to mean all formal interests in property, such as legal title, equitable interests, or future interests. See Black’s Law Dictionary (10th ed) (defining “proprietary” as, among other things, “[o]f, relating to, or holding as property’). While the right to possession may well accompany some of these interests, such a right may be independent of them as well, arising from other sources, such as a bailment. And at times, these proprietary rights may not endow the person who holds them with the immediate right to possess the property.
The common law’s protection of possession is explained by a similar rationale to that justifying larceny as a criminal offense: to prevent breaches of the peace. As the United States Supreme Court has observed:
In the 13th century, larceny was limited to trespassory taking: a thief committed larceny only if he feloniously “took and carried away” another’s personal property from his possession. The goal was more to prevent breaches of the peace than losses of property, and violence was more likely when property was taken from the owner’s actual possession. [Bell v United States, 462 US 356, 358; 103 S Ct 2398; 76 L Ed 2d 638 (1983).]
A substantial body of literature supports the notion that the law of larceny was intended to prevent breaches of the peace. Green, 13 Ways to Steal a Bicycle (Cambridge: Harvard University Press, 2012), p 77; Steel, Taking Possession: The Defining Element of Theft?, 32 Melb U L Rev 1030, 1038-1039 (2008); Douglass, Rethinking Theft Crimes in Virginia, 38 U Rich L Rev 13,17 (2003); Fletcher, The Metamorphosis of Larceny, 89 Harv L Rev, 496, 497-498 (1976).
Other cases involving related crimes give further support to this interpretation. See, e.g., People v Gould, 384 Mich 71, 80; 179 NW2d 617
Sheldon, 208 Mich App at 334 (“Larceny is not limited to taking property away from the person who holds title to that property, but also includes taking property from a person who has rightful possession and control of the property.”); Hooks, 139 Mich App at 96 (“[I]t is well-settled that a larceny can be committed by a wrongful taking from a person in actual possession or custody of the goods taken; ownership need not be show[n].”).
A similar comparison-of-rights approach can be found in Michigan caselaw addressing whether, for purposes of armed robbery, the defendant engaged in “a felonious taking of property from the victim’s presence or person.” See People v Rodgers, 248 Mich App 702, 707-708; 645 NW2d 294 (2001) (finding an illegal taking where the defendant did not argue he had the right to possess “when compared to [the victims’]” right to possess); see also People v Jones, 71 Mich App 270, 272; 246 NW2d 381 (1976) (noting that the victim had the right to handle the property taken at the time of the taking); People v Beebe, 70 Mich App 154, 159; 245 NW2d 547 (1976) (finding that the victim had a right to possess the goods taken as against the defendant); People v Needham, 8 Mich App 679, 685; 155 NW2d 267 (1967) (same).
Our reliance on this general definition of “possession” here should not be taken to suggest that in order to have rightful possession for purposes of larceny a party must have the right to possess the property to the complete exclusion of any and every other party. Indeed, multiple individuals can hold possessory rights in the same property at the same time, as do, for example, partners and joint tenants. See LaFave, § 19.4(c), p 85. Rather, as discussed earlier, the relevant inquiry in the larceny context is whether the party from whom the property was taken had, at the time of the taking, the right to possess it as against the defendant.
This policy proceeded from an 1843 statute, 1843 PA 62, “inhibiting the action of ejectment [by the mortgagee] until after a foreclosure of the
These sections were enacted following the events in this case, 2014 PA 125, but they seem to confirm what is made manifest in the prior caselaw: purchasers lack immediate possessory rights.
The Minnesota Supreme Court, in a case involving facts very similar to the instant case, observed in dictum that “provisions of the criminal code, such as theft... or criminal damage to property. .. provide no criminal recourse since during the redemption period a mortgagor has exclusive right to possession of and title to the property.” State v Zacher, 504 NW2d 468, 472-473 (Minn, 1993).
The prosecutor also argues that defendant’s right to possess the property during the redemption period does not entail a right to remove or dispose of fixtures attached to the property. Citing Adams v Cleveland-Cliffs Iron Co, 237 Mich App 51, 57; 602 NW2d 215 (1999), the prosecutor contends that “property” rights are represented by a “ ‘bundle of sticks’ ” including rights of possession, enjoyment, and disposition. The right to possess is thus distinct from the right to remove or dispose, and defendant’s rights did not include the latter. This fails to persuade for two reasons. First, the prosecutor presents no support for the proposition that the mortgagor who retains legal title
Our resolution of this case makes it unnecessary to address the second issue on which oral argument was heard: “whether fixtures taken from real property may be the subject of larceny under MCL 750.356(1).” March, 497 Mich at 1041.