Atkinson v. Schell

Brooke, J. (after stating the facts). We are quite satisfied, after a careful reading of the entire record, that Fitzgerald’s occupancy of the farm in question, and his exercise of dominion thereover, was in recognition of and not adverse to the title in his sister, Mrs. Schell. He had caused the deed to be made to her in the first instance, after having the mortgage run in her name, because he wanted to provide for her, and the record shows he thereafter expressed satisfaction by reason of having made this provision. His relations with her during his long life appear to have been more than usually intimate, due, no doubt, to the fact that he had no other family ties, and she was his nearest relative in Sanilac county. In making the lease to Mrs. Carpenter, he caused her to execute it as well as himself. This act indicates a distinct recognition of Mrs. Schell’s title so late as 1901. The decree dismissing the bill of complaint was therefore properly entered. We are of opinion, however, that that part of the decree granting affirmative relief to the defendants is not warranted by an answer praying only the dismissal of the bill of complaint, and not for affirmative relief, either specifically or generally. Schwarz v. Sears, Walk. Ch. 170; Andrews v. Kibbee, 12 Mich. 94 (83 Am. Dec. 766); Hackley v. Mack, 60 Mich. 591 (27 N. W. 871); McGuire v. Van Buren Circuit Judge, 69 Mich. 593 (37 N. W. 568); Coach v. Kent Circuit Judge, 97 Mich. 563 (56 N. W. 937); Griffin v. Griffin, 118 Mich. 446 (76 N. W. 974); Chancery Rule No. 11. The decree will be modified accordingly, with costs to the appellant. Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.