Donovan v. Ward

Hooker, J. The plaintiffs, with others, inherited the [603] lands in controversy from their mother. While yet infants of the ages of 20 and 19 years, respectively, and upon April 16, 1883, they united with the other owners in a quitclaim deed to one Peter O’Hair upon a nominal consideration of one dollar, but in truth to enable O’Hair to secure John Connor and Peter Eassmussen, by mortgage, for signing the bail bond of plaintiffs’ brother. . Such mortgage was given, and upon its foreclosure in chancery Eassmussen became the purchaser, receiving a commissioner’s deed on May 26, 1885. On July 2, 1885, Eassmussen conveyed to William Ward, through whom defendants claim title. Ward and his successors have had exclusive possession of the premises since August, 1885. This action was begun about July 15, 1893. It was tried before the court without a jury, and comes to this Court upon exceptions to the judge’s findings of fact and law, the appeal being taken by the defendants. But two questions are discussed in the brief of defend [604] ants’ counsel: (1) Whether plaintiffs are not estopped from asserting title; (2) the statute of limitations. The findings of fact show that both plaintiffs learned of Ward’s purchase of the lot very soon after it was made; that there was no evidence that either took any action to disaffirm the deed to Ward, or in any way claimed that it was invalid, until April 6, 1893, when they demanded possession. No improvements were made by Ward or. his representatives, nor did either plaintiff do anything indicating an affirmance or ratification of their deed. Under these findings we must hold, in conformity to the settled rule in this State, that the action was seasonably brought, if within the period prescribed by the statute of limitations. Prout v. Wiley, 28 Mich. 164; Tyler v. Gallop Estate, 68 Id. 187; Sims v. Everhardt, 102 U. S. 300. It is contended on behalf of the defendants that this action is barred, under How., Stat. § 8698, subd. 1, limit [605] ing to five years the bringing of actions against persons claiming under judicial sales. It is asserted that tbe lapse of five years settles such a title against the world. Under this sale and commissioner’s deed the defendants acquired the same title that O’Hair, the mortgagor, had. His mortgage, and that alone, was litigated. The character or validity of such title was not settled. Titles adverse to his were not, and under repeated decisions could not be, litigated in that suit; and, unless we are to put a premium upon the perfection of titles through judicial sales, we cannot hold that such deeds cut off titles sooner than other adverse claims. It was held in Showers v. Robinson, 43 Mich. 502, that it is only when the validity of the title acquired under one of the- sales mentioned is in controversy in the suit, and is the subject-matter of the issue to be tried, that the five-year limitation applies. Mr. Justice Cooley’s reasoning in that case is so satisfactory that it leaves no excuse for discussing it further. See, also, Millar v. Babcock, 29 Mich. 526; Toll v. Wright, 37 Id. 93. We think the judgment of the learned circuit judge was right, and it will be affirmed. The other Justices concurred.