Bakker v. Fellows

Hooker, J. This is a cause in which we are asked to review drain proceedings, and we take this opportunity to commend counsel for the exceptionally clear and concise manner in which both record and briefs present the meritorious questions involved. An application was duly filed with the drain commissioner on February 15, 1907. It appeared to be signed by 10 persons, alleged to be freeholders of the proper township, and it alleged that 5 of these, naming them, were owners of land liable to be assessed for the proposed drain. On March 28, 1907, the commissioner filed his first order of determination, and being unable to obtain the right of way across the premises of the appellants (all others having released), he filed his petition for special commissioners. On June 5, 1907, the appellants filed their objections. They were in brief: First, that the application was not signed by 10 freeholders. Second, that it was not signed by 5 or more owners of lands liable to assessment for benefits. Third, it alleged that one Ann V. Osborne, described in the petition as such freeholder and owner, was not such a freeholder, or a “freeholder at all.” A hearing upon the petitions was had and on July 6, 1907, the probate judge made the usual order appointing commissioners, expressly overruling the objection of appellants. On July 10, 1907, appellants filed with the probate judge a petition for rehearing based upon the further [430] ground that another of said signers of the petition waB not a freeholder, and that the fact was unknown to them at the time of the former determination. A hearing was had upon this application on July 15th, but the probate judge denied it on the grounds that he had no authority to grant such rehearing. On July 23, 1907, the special commissioners filed their report with the probate court, finding it necessary to take appellants’ property, and awarding each $1 damage. On July 24th a final order of determination was made and filed, and on July 31st a written notice of intention to review by certiorari was served on the commissioner by appellants. On August 7,1907, the affidavit for certiorari was filed and the writ was issued by the circuit court. The drain commissioner made a return on August 19, 1907, simply denying the allegations of the affidavit, and asserting the regularity of all proceedings. On August 23,1907, a petition was made for a further return, and the probate judge was made a party by order of the court. On the 27th of August, 1907, the probate judge made a return of the proceedings and evidence taken before him, and the commissioner filed a further return. From these the following facts appear, viz.: 1. Ann V. Osborne’s interest in land was confined to such as was conveyed to her by a writing attached to the return whereby several parties, named and described as parties of the first part, in consideration of rents and covenants specified, did let and lease to George Osborne and Ann V. Osborne, his wife, parties of the second part, premises described for the term of the natural life of both said second parties on terms and conditions specified. It expressly stated that the lease should terminate only on the death of both of said second parties. “Provided, that in case any rent shall be due and unpaid, or if default be made in any of the covenants herein contained, then it shall be lawful for the said parties of the first part, their certain attorney, heirs, representatives and assigns, to re-enter into, repossess the premises, and [431] the said parties of the second part, and each and every other occupant, to remove and put out. “And the said parties of the second part do hereby hire the said premises for the term as above mentioned and do covenant and promise to pay to the said parties of the first part, their representatives and assigns, for rent of said premises for said term, the sum of one ‘ ‘ Dollars ” and other good and valuable consideration paid by said second parties to said first parties, the receipt whereof is hereby acknowledged, the same having been paid in advance before the ensealing and delivering of this lease. Said parties of the second part further covenant that they will not assign nor transfer this lease or sublet said premises or any part thereof without the written assent of said parties of the first part.” This document was signed only by the parties of the first part by whom it was also acknowledged. Nothing indicates that it was not delivered or that Mrs. Osborne was not in exclusive possession under it, as sole owner of the interest intended to be conveyed by it. 2. The commissioner supposed that Arend K. Brouwer was the owner of the premises occupied by him and a freeholder, and he never heard anything to the contrary until the petition for rehearing was filed. He then made inquiries and was informed that said Brouwer’s father promised to buy him a farm in Olive township; that he bought this land taking title to himself. Subsequently he told his son that it was his farm, and the son entered into and afterward continued, and was in possession at the time of these proceedings, andintheinterval he had occupied and worked the land for several years, built buildings, had it assessed to himself and paid the taxes in every respect as an owner, except that the father had never deeded the land to him. Upon the hearing, the learned circuit judge was of the opinion that under the proofs Ann ~V. Osborne was a freeholder, and owner of lands liable to assessment and that— “Under the showing made in this case as to the question of whether one Arend K. Brouwer was such a freeholder as claimed by plaintiffs, was not a proper subject [432] or matter for the court’s consideration upon the record as presented.” The order of the probate judge was affirmed. The cause is before us by writ of error. The only questions discussed in appellants’ brief are, whether the application for the drain was jurisdictionally defective: First. Because Ann V. Osborne was not a freeholder and a landowner. Second. Because Brouwer was not a freeholder. Freeholders. Section 4319, 2 Comp. Laws, provides for an application signed by not less than 10 freeholders of the township, 5 or more of whom shall be owners of lands liable to assessment for benefits. Under our law one who has an estate for life in land is a freeholder. See 3 Comp. Laws, § 8787; Crouse v. Michell, 130 Mich. 356. It is contended that the instrument in question was a mere unilateral agreement; but we think that, when accepted and possession taken under it, it was a good and valid lease, although not signed by the lessees. Jones on Landlord and Tenant, §§ 75, 77-79. Inasmuch as this was a valid lease for life to Mr. and Mrs. Osborne, she had a freehold estate. The case of Brouwer is different. The claim that he is a freeholder within the statute is that he had, in equity, a right to the premises in fee. We are of the opinion that this is true, under the proof, upon the authority of Maas v. Insurance Co., 148 Mich. 434, and Starkweather v. Chatfield, 149 Mich. 443. Ownership. The remaining question relates to the title of Mrs. Osborne; counsel for the plaintiffs asserting that, although she may be called a freeholder, she was not an owner of premises liable to assessment for benefits. Inasmuch as we have reached the conclusion that Brouwer was the equitable owner in fee, it becomes unnecessary to consider Mrs. Osborne’s ownership; there being 5 owners of land subject to assessment exclusive of her. It is unnecessary to discuss the question of waiver, but our disposition of the meritorious question regarding [433] Brouwer’s title is not intended to imply that it was seasonably raised. The judgment is affirmed. Grant, C. J., and Montgomery, Moore, and Carpenter, JJ., concurred with Hooker, J. Blair, J., concurred in the result.