Howard v. McCarthy

These are actions of ejectment brought by appellants, as the heirs of their father, Shepard L. Howard, claiming title to an undivided one-quarter interest in property described in their declarations. The cases were tried as one before the judge without a jury. He gave judgment for the defendants. The case is brought into this court by writ of error. All the parties trace title through Cyrus Howard, the grandfather of the plaintiffs, who died intestate in March, 1856, leaving the following children: Nancy D. Clark, Hepsibah P. Manning, Caroline P. Porter, Abbie A. Patrick, Edgar Howard, William B. Howard, Francis A. Howard and Shepard L. Howard. Shepard L. Howard is the father of the plaintiffs. On May 17, 1872, Francis A. Howard executed and delivered a paper, the material parts of which are as follows: *Page 177 "This indenture, made the 17th day of May in the year of our Lord one thousand eight hundred and seventy-two, between Francis A. Howard, of Sutter Creek, Amador county, California, of the first part, and Shepard L. Howard of the township of Dearborn, county of Wayne, State of Michigan, of the second part witnesseth: "That the said party of the first part for and in consideration of the sum of one dollar to him in hand paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, doth by these presents grant, bargain, sell, remise, release, and forever quitclaim unto the said party of the second part and to his heirs and assigns forever. (Then follows the description of the premises.) "And it is provided that the said party of the second part shall not sell the above described lands and premises, but that after his decease the above described lands and premises shall descend to the heirs of the aforesaid Shepard L. Howard. Together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining, to have and to hold, the said lands and premises, to the said party of the second part and to his heirs and assigns to the sole and only proper use, benefit and behoof of the said party of the second part, his heirs and assigns forever. "In witness whereof the said party of the first part hath hereunto set his hand and seal the year and day first above written. "FRANCIS A. HOWARD (Seal)." The following paper was also executed and delivered: "This indenture made the 17th day of May, in the year of our Lord one thousand eight hundred and seventy-two, between Abbie A. Patrick, of the township of Dearborn, county of Wayne, State of Michigan, of the first part, and Shepard L. Howard of the place aforesaid, of the second part, witnesseth: "That the said party of the first part, for and in consideration of the sum of one dollar to her in hand paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, doth by these presents grant, bargain, sell, remise, release, *Page 178 and forever quitclaim unto the said party of the second part, and to his heirs and assigns forever. (Then follows the description of the premises.) "And it is hereby provided and the intention of this conveyance is declared to be that the said party of the second part shall have the use and possession only of the premises above conveyed, but not the power or right to sell the same, and after his decease the said bargained land and premises shall descend to the heirs of the aforesaid Shepard L. Howard, together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining. To have and to hold, the said land and premises as described to said party of the second part and to his heirs and assigns to the sole and only proper use, benefit and behoof of the said party of the second part, his heirs and assigns forever. "In witness whereof, the said party of the first part hath hereunto set her hand and seal the day and year first above written. (Signed) "ABBIE A. PATRICK. (Seal)." October 4, 1889, Edgar Howard, his wife, N.A. Howard, Shepard L. Howard, his wife, Mrs. Irene Howard, Abbie A. Patrick, Hepsibah P. Manning, Caroline P. Porter, Nancy D. Clark, Frank M. Howard, Geraldine N. Booth, made a warranty deed of the property to Joseph A. Patrick. September 26, 1890, William A. Howard, heir at law of Cyrus Howard, who did not join in the foregoing warranty deed with the other heirs, conveyed all of his right, title and interest in and to said lands to Joseph A. Patrick. Defendants claim title by mesne conveyances from the said grantee, Joseph A. Patrick, to all of his property including the one quarter interest now claimed by the plaintiffs. Shepard L. Howard died August 25, 1918. It is the claim of the plaintiffs that the two quitclaim deeds of Francis A. Howard and Abbie A. Patrick to Shepard L. Howard dated May 17, 1872, conveyed to Shepard L. Howard a life estate only of *Page 179 the interest of the grantors, and that he could convey nothing more, and when Shepard L. Howard joined in the warranty deed of October 4, 1889, he did what he had no right to do; counsel citing section 11690, 3 Comp. Laws 1915; 18 C. J. p. 318, and other authorities. It is the claim of the appellees that the two quitclaim deeds conveyed a title in fee simple; counsel citing Smith v. Smith,71 Mich. 633, and Meacham v. Blaess, 141 Mich. 258. The situation would seem to be a peculiar one. If the quitclaim deeds of May 17, 1872, conveyed to Shepard L. Howard only a life estate, then Abbie A. Patrick and Frank A. Howard must have retained their interest in said land subject to such life estate. It would seem to follow that when they and Shepard L. Howard all joined in the warranty deed of October 4, 1889, that the giving of said warranty deed would convey all the interest possessed by Abbie A. Patrick, Frank M. Howard and Shepard L. Howard. We find no reversible error. The judgment is affirmed, with costs to the appellees. BIRD, J., concurred with MOORE, J. STEERE and FELLOWS, JJ., concurred in the result.