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MENZER V. MENZER.

(83 MICHIGAN, 319.) DIVORCE – EXTREME CRUELTY. Where a husband conveys to his wife his

homestead and household furnitura, constituting the bulk of bis property, after which his wife refuses to cohabit with him, and although allowing him to keep a room in the house, finally drives him from it by moving away and leasing the house to strangers, this constitutes extreme cruelty on her part, which entitles the husband to a divorce. Frank B. Leland, for the appellant. Howard and Gold, for the respondent.

MORSE, J. The bill of complaint in this cause was filed November 24, 1888, praying for a divorce on the grounds of extreme cruelty and desertion. Defendant answered, denying the acts of cruelty and desertion charged, and alleging that the cause of their domestic unhappiness was the fault of complainant.

The parties were married in January, 1866, in California. Since 1870 the complainant has resided in Flint, Genesee County, Michigan. His wife lived with him until April, 1887, but now resides in Detroit. The children of the marriage live with her. There are four of them, two sons and two daughters. At the time of the filing of the bill they were aged, respectively, twenty-two, twenty, fourteen, and ten years.

The testimony of the complainant makes a sufficient caso of extreme cruelty on the part of his wife. Most of the acts charged, however, stand alone upon his evidence, without corroboration from any one. The children support the mother in her denial of cruelty to the father. To the same effect is the testimony of a domestic, a woman who lived in the family for ten or twelve years, and up to within two or three years of the separation of the parties. The circuit judge, before whom the testimony was taken in open court, refused the complainant a decree, and dismissed his bill.

One of the main charges of cruelty in the bill, we think, is sustained by the evidence. The complainant is shown to be a hard-working, industrious man, and more than generous in his expenditures for his family. His wife was inclined to be extravagant, but her wants and wishes were always gratified in the way of household expenses. The testimony of every disinterested witness shows that, ordinarily, the complainant was the most indulgent of husbands and fathers, and more so than his means warranted. One of his sons testifies: “ My

father seemed to do everything he could for his family." There were quarrels between husband and wife, in which neither was blameless, but he has been more sinned against than sinning.

He erected a comfortable and substantial home upon two lots in the city of Flint, which is worth four or five thousand dollars. This he caused to be deeded to the defendant. He also gave her all the furniture therein, except his own personal belongings. This was the bulk of his property. For some time after his wife refused to cohabit with him, he was allowed the privilege of a room in this house, but finally he was driven from it. His wife moved to Detroit, and rented the homestead to strangers. It is evident, also, that he was not well treated for some time before he was compelled to leave the house. We think this action of the wife can be considered extreme cruelty.

One of his daughters also 'sent a communication to a dig. reputable paper at Saginaw, which was published, in relation to her father, showing a malicious spite and feeling not commendable in any child, much less in one who had been so generously and kindly treated as she had been by her father. The mother aided and abetted the daughter in this transaction. It is evident that the wife has lost all affection for her husband, and does not desire to live with him any longer. But she is determined that he shall not have a divorce, and is actuated in this determination by something more than the fact that she is a Catholic, and does not believe in divorces, which she claims is the reason of her opposition.

The decree of the court below, dismissing complainant's bill, is reversed. He will be granted a decree of absolute divorce here for extreme cruelty. No costs will be allowed either party.

As the wife has nearly all the property, no alimony will be granted her.

DIVORCE -- EXTREME CRUELTY. - As to what constitutes cruelty which is a valid ground for a divorce, see McVickar v. McVickar, 46 N. J. Eq. 490; 19 Am. St. Rep. 422, and note 433; Youngs v. Youngs 130 ILL. 230; 17 Am. 8L Rep. 313, and noto.

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Shaw v. Hill.

(83 MICHIGAN, 322.] EJECTMENT - PARTIES. An employee of defendant in ejectment, who is

permitted to reside upon the disputed premises when the suit is brought and who claims no interest in the land, is not a necessary party defend.

ant. EJECIMENT, WHAT NECESSARY TO MAINTAIN. Plaintiff, who has no title

to the land, but entered into possession good faith, under a claim of right which proved valueless, may maintain ejectment against one who obtained possession through plaintiff's tenant, and who shows no title, right, or interest in the land, except a claim, merely asserted, and not

proved, of being the original owner. EJECTMENT. — EQUITABLE TITLE CANNOT BE SET UP to overthrow a legal

title in an action of ejectment. EJECTMENT — EQUITABLE TITLE – DEFENSE. — The right of possession uuder

color or claim of title by plaintiff in ejectment may be prima facie title as against a mere intruder; but when an equitable interest is shown liy defendant which is unconnected with and independent of plaintiff's cların of title, such defendant may show in defense that plaintiff has no title to the premises. Jacob J. Van Riper and George S. Clapp, for the appellant. 0. W. Coolidge and Edward Bacon, for the respondent.

MORSE, J. This case has been bere once before, and will be found reported in 79 Michigan, 86. The facts are not materially different from what they were then, except in the showing made by defendant as to her title to the premises.

There was also on the last trial some evidence tending to show that one Curran was in the actual occupancy of the premises at the time this suit was brought, and it is claimed by the defendant that he should have been made a defendant. It was shown, however, that the occupancy of Curran was for but a short time, and while he was working for defendant; that he made no claim to any rights in the land, either as tenant or otherwise. It seems he wanted to move into the house on the premises, and the defendant permitted him to do so. Under the circumstances, it was not necessary to make him a party.

We held in the case when it was here before that plaintiff. although he was shown to have no title in the land, but entering into possession in good faith, under a claim of right - his tax title deeds – which proved valueless, could nevertheless maintain ejectment against the defendant, who obtained possession through plaintiff's tenant, Streeter, and who showed no title, right, or interest in the land, except a claim, merely asserted, but not proved, of being the original owner of the land; citing Bertram v. Cook, 32 Mich. 521; Cook v. Bertram, 37 Mich. 125; Bertram v. Cook, 44 Micb. 397; Morse v. Byam, 55 Mich. 594; Fuller v. Sweet, 30 Mich. 241; 18 Am. Rep. 122. See Shaw v. Hill, 79 Mich. 90. But it was also pointed out in the opinion that had the defendant proved title to herself in the land, the suit could not have been maintained by the plaintiff, for the reasons given in Jochen v. Tibbells, 50 Mich. 36, where it was said that if "the landlord seeks to recover the possession he can do so under the lease; but if he goes further, and claims the premises in fee, the tenant is not estopped from denying any right claimed by the plaintiff further or greater than that of possession. This fully protects the landlord, who regains his possession, and the tenant, having gained no advantage by taking a lease, the parties then are in proper position to litigate the title, should they desire so to do. If the plaintiff's position is correct, a judgment in fee may be obtained by estoppel against the tenant, and thus the landlord has acquired an advantage which he would not be entitled

to."

This is exactly what has been done in this case. The ver. dict was directed by the court that the plaintiff was well entitled to hold the premises in fee, and against the defendant for possession; and without any title at all, the plaintiff has judgment against the defendant for the fee of the land. It is true, when the case was here on the other record, we said that such a judgment might be entered as against a mere intruder upon the possession of one having prior possession, and being ousted by such intruder; and that against such an intruder the person first in possession, claiming title, has a valid, subsisting interest amounting to a prima facie title in fee. The trial court undoubtedly intended to follow our ruling when he directed the verdict as he did upon the last trial.

But upon the first trial Mrs. Hill made no proof of any right or title in herself to the premises, and this was the controlling fact which ruled our holding when the case was first here. Upon this record, it appears that she proved at least an equitable title to or interest in the land, entirely independent of and adverse to any claim of plaintiff. She showed a patent from the United States to Charles J. Lanman, September 10, 1838. She also introduced the records in the office of the register of deeds of Berrien County, which showed a deed by Lanman and wife to Stanley H. Fleetwood, September 13, 1850, and by Fleetwood to Charles Butler, May 1, 1852, by Butler to Clinton B. Fiske, July 6, 1853, and by Fiske to James B. Crippen, May 16, 1855. These deeds were all recorded on and before May 18, 1855. It was also shown that, February 9, 1866, Crippen sold this land to Greenleaf Glidden upon a land contract. This contract was recorded, but was not acknowledged, and was shown by the record. Crippen died in 1869, and left a will, in which he directed his executors to sell all his lands. His wife was appointed executrix in his will, in company with Clinton B. Fiske and David B. Dennis. Mrs. Crippen alone qualified, for what reason the probate records fail to show. Glidden assigned his contract to the defendant, and Mrs. Crippen ratified it, and, as executrix, deeded the land to Mrs. Hill, January 18, 1872.

The deed from Lanman to Fleetwood was executed in Connecticut before one John T. Waite, purporting to be a commissioner of deeds within that state for the state of Michigan. It was objected to because it did not purport to be executed and acknowledged according to the laws of the state of Michigan, because the record did not show that the acknowledgment bore the official seal of the commissioner. The record of the deed from Fleetwood to Butler was also objected to, because the acknowledgment did not recite “ that it was executed according to the laws of the state of Michigan, or that the execution of the same was the free act and deed of the grantor.” It was acknowledged before a commissioner of deeds in the state of New York. The deed from Mrs. Crippen, as executrix, was objected to for the reason that it was executed and acknowledged by her alone, and was never signed or acknowledged by Clinton B. Fiske or David B. Dennis, executors named in her husband's will. The record of the contract to Glidden was objected to because there was no law authorizing its record, it not being witnessed or acknowledged. These evidences of title in Mrs. Hill were all received by the court, in the first place, when offered in evidence, under the objections above noted. By his ruling afterwards, he evidently held the chain of title not complete, but in what respect is not shown by the record.

Conceding that the chain of title from the United States to Mrs. Hill was not established, was there enough shown to permit her to contest the title of the plaintiff, or his prima facie title arising out of his prior possession? There was certainly enough to show that she was more than a mere intruder with

AM. ST. KEP., VOL. XXI. -- 39

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