Hahn v. Fredericks.

The jury, in answer to a charge and question, found that plaintiff gave defendants below possession of the seven piles nearest the lake; but there is nothing in the testimony that legally tends to show any such thing, any further than it might be inferred from the agreement that they would have a right to take the wood therefrom. No actual or symbolical possession is shown to have been given or taken. Nor is it clear that this would signify, in the absence of other important facts.

The principal question in the case seems to be, whether the sale actually attached to any two hundred cords which could be identified before the fire.

It is not claimed, and there is nothing to warrant the notion, that the contract was intended to be severable, or to attach to any thing less than two hundred cords of hard wood, and of no other wood. There was no sale of the first six piles as they stood, or of the hard wood in the first six piles, independent of so much more as would fill up the measure.

Until an actual measurement, which was to be made when the hard wood was removed from the piles and as it was placed on the scows, it is evident that there could be no parcel identified to which a sale could attach as complete. It was a bargain for a parcel yet to be measured out of a larger parcel of various qualities, and of an extent not determined. The original measurement was, under this contract, of no importance.

We have found no authority which recognizes such a transaction as a completed sale. It was not a sale in gross of an entire parcel of wood, where the measurement was only necessary to ascertain the quantity, as in Adams Mining Co. v. Senter, 26 Mich. 73. Here the measurement was necessary to complete the identification, and to determine what wood was to belong to the purchaser. Under such an arrangement it is well settled that no title passes to any portion of the property until it has been measured and thus identified and severed from the rest. Dunlap v. Berry, 4 Scam. 327; Courtright v. Leonard, 11 Iowa, 32; Young v. Austin, 6 Pick. 280; Merrill v. Hunnewell, 13 id. 213; Mason v. Thompson, 18 id. 305; Scudder v. Worster, 11 Cush. 573; Simmons v. Swift, 5 B. & C. 857; Rugg v. Minett, 11 East, 210; Shepley v. Davis, 5 Taunt. 616.

This case is distinguishable in some respects from any case heretofore decided by this court, but rather by its facts than by the principles involved. The requisites for a completed sale have been VOL. XVIII. - 16

Fuller v. Sweet.

somewhat considered in Whitcomb v. Whitney, 24 Mich. 486, and Adams Mining Co. v. Senter, 26 id. 73, where title passed to property identified; in Lingham v. Eggleston, 27 Mich. 324, where it was held not to pass to property identified in gross, because not inspected and identified by quality and quantity which were necessary to fix prices; and in Ortman v. Green, 26 Mich. 209, and First National Bank of Marquette v. Crowley, 24 id. 492, where there was no sufficient identification, and therefore no title given.

There seems to be no foundation anywhere for declaring any thing to be a completed sale where the property is to be subsequently identified by separation and measurement out of a larger quantity, and cannot be known till so measured.

As the property was destroyed, it is simply a controversy as to who shall bear the loss. Several of the cases cited on the argument arose out of similar misfortunes, and it is clear it must fall on the actual owner, whose rights cannot be enlarged or diminished by the accident.

The judgment below must be reversed, with costs, and a new trial granted.

The other justices concurred.

Judgment reversed and new trial granted.

FULLER, plaintiff in error, v. SWEET.

(30 Mich. 237.)

Estoppel-when tenant may deny title of lessor.

Defendant, who was in possession as tenant in common of certain real estate, agreed by parol to pay rent to C. for an undivided share therein not owned by defendant and claimed by C. After paying rent for several years defend. ant disclaimed tenancy under C. and refused to longer pay rent. Held, that defendant was not estopped from denying the title of C.

A

CTION for use and occupation of a mill by Edward P. Fuller and another, executors of Charles H. Carroll, against Martin L. Sweet. Sufficient facts appear in the opinion. From the decision of the court below in favor of the defendant, plaintiffs brought error to this court.

Fuller v. Sweet.

Hughes, O'Brien & Smiley, for plaintiffs.

Norris, Blair & Kingsley, for defendant.

CAMPBELL, J. Plaintiffs, who are executors of Charles H. Carroll, deceased, sued defendant for the use and occupation of the undivided one-fourth of certain mill premises in Grand Rapids, from July 1, 1867, to the commencement of suit in the spring of 1872.

The important facts bearing on the legal questions at issue are as follows: Defendant in 1846 bought one undivided half of the property from one Richmond, and entered upon it, claiming that interest as a tenant in common. In 1856, on the first day of July, defendant, not knowing whether the other half belonged to Daniel Ball, or to Ball and Carroll equally, received and accepted a parol proposal from Carroll (then claiming as owner of that quarter interest), to lease the undivided fourth to defendant for two hundred dollars a year, quarterly in advance, no period being fixed, and it being understood that the lease was to remain in parol. Defendant paid rent to Carroll until his death in 1865. He thereafter paid rent to plaintiffs up to July 1, 1867. In the fall of 1867 he refused to pay any further rent, and disclaimed tenancy under plaintiffs, and claimed to own the premises himself. He had purchased the remaining half not originally owned by him, in 1863 or 1864, believing that he was obtaining a good title, and he held in good faith. After the disclaimer, he sold out the whole title in December, 1867, to one Armitage, and gave up possession to him. Since the disclaimer no demand has been made, either of rent or possession. There is no finding that Carroll had any title.

The court below held defendant liable as a tenant from year to year until the end of the year during which he disclaimed, and up to July, 1868, but refused any further recovery against him. Plaintiffs bring error, claiming to recover for the period thereafter, upon the ground that there was no surrender of possession, or termination of the tenancy.

The claim of plaintiffs in error is based upon the alleged existence of such an estoppel as would prevent the defendant from setting up any title in himself, or in any one adverse to Carroll's estate, until the lease is ended in some sufficient way, and Carroll's representatives reinstated in the possession.

Fuller v. Sweet.

The plaintiffs' points are left in a very indefinite shape, and we have had some difficulty in finding upon what precise ground they wished to stand. No decision has been found which does not differ very greatly in its facts from the present case. We have found none upon which, as it seems to us, there is any support for a more liberal recovery than was granted in the Circuit Court.

Assuming (what, for reasons to be alluded to presently, is a broad assumption) that the arrangement betweeen Carroll and Sweet in 1856 can be likened to an ordinary lease, and be governed by its analogies, it was a lease at will in its origin, and became, at best, no more than a lease from year to year, subject to be ended by the will of either party. The notice which Sweet gave to the plaintiffs was from seven to eight months before the end of the year. That such a notice and disclaimer is sufficient to serve the purposes of a notice to quit, and terminate the term, is settled in Doe d. Price v. Price, 9 Bing. 356; Doe d. Graves v. Wells, 10 A. & E. 427. And it was held in Accidental Death Insurance Co. v. Mackenzie, 9 W. R. 713, that a party might set up his own title at the expiration of his term, without restoring possession, upon the plain and sensible ground that it would be idle to compel a party to go out of possession, when he could turn round and recover it back upon the title, and hold the person to whom he had restored it as a wrongful occupant. In Page v. Kinsman, 43 N. H. 328, the same principle was asserted, and while the tenant was held estopped during the term, the estoppel was held not to outlast it.

The present case, however, differs very materially from ordinary tenancies, and whether those cases would be universally correct or not, is of no great importance.

The only foundations for estoppels against lessees, that we have found any support for, arise either out of indentures, whereby there is a mutual estoppel under seal, or from possession given, whereby an advantage is derived by the tenant from the act of the landlord, which is peculiar, and which stands in law on a different footing from most other acts.

Where a person in possession agrees by parol to pay money to a person out of possession, and who has no title, it is impossible to find any sensible ground for sustaining such a promise which would not sustain any other promise made without consideration. Where there is an indenture, there is at common law a presumed consideration. Where there is possession given, there is an actual consid.

Fuller v. Sweet.

eration which may render it also reasonable enough, under ordinary circumstances, to require the landlord to be put back in statu quo. But a person who ever had or gave up possession to the tenant, is left in statu quo by the tenant's remaining in possession, and in reason should have no further claim. If he has, it must be by some peculiar and anomalous rule, for which we have found no support. Such a relation, if valid at all, must rest on a valid contract, and the only consideration for the contract would be proof of title, not covering merely the period of tenancy, but outlasting it. When that is proved, a right to possession is proved with it, and a further holding by the tenant would be wrongful, and subject him to eviction. But whether it could be made the basis of an implied contract to pay rent any longer, is a different question, which does not arise in this case, as there is no such proof.

Accordingly it has been regarded as competent in all cases where the tenant has not received possession from the party who claims rent, to authorize the claimant's title to be investigated, unless there is some other ground of estoppel. Gregory v. Doidge, 3 Bing. 474; Rodgers v. Pitcher, 6 Taunt. 202; Hopcraft v. Keys, 9 Bing. 613; Doe d. Plevin v. Brown, 7 A. & E. 447; Gravenor v. Woodhouse, 1 Bing. 38; Fenner v. Duplock, 2 id. 10; Cornish v. Searell, 8 B. & C. 471; Claridge v. Mackenzie, 4 M. & G. 143; Mountnoy v. Collier, 1 E. & B. 630; Cripps v. Blank, 9 D. & R. 480; Hall v. Butler, 10 A. & E. 204. In these cases the rule is recognized, and in most of them adjudicated.

In Cornish v. Searell the case was put upon its true ground, as an attempt to enforce an agreement without consideration. And in Claridge v. Mackenzie, it was said there could be no implied grant of possession by a party who could not have put the tenant out of possession if he had refused to make an arrangement.

The case before us involves some further points, bearing directly on the effect of the failure of the plaintiffs to prove title. It is very well settled that where a tenant is in under one title, no attornment is valid which is made to any one not in privity with that title. The same principle invoked by plaintiffs to estop the defendant from denying the title under which he was possessed, will prevent him from changing possession by any acknowledgment to a stranger not deriving title from the same source with that of the original landlord, and that derivative title must be shown, in order to validate the attornment, and save the tenant and all claim