
    Henry Druse v. Aaron R. Wheeler, et al.
    
      Sight <tf possession under contract for sale of land. A contract for the future -salo and conveyance of lands gives no present right of possession to the vendee, without special provisions to that effect.
    Where by an agreement between the owner of lands and the trustees of a church adjoining, the former agreed, on conveyance to him by the church of both parcels, to re-convey to the trustees certain premises described, to be used for none but specified purposes, and the trustees were to obtain lawful authority before the transaction could be completed, it waB held that until they obtained authority, and conveyed to the other party, he was not required to take any steps on his part for their benefit.
    
      What a revocable license. Verbal permission to use a portion of the premises ultimately. to be conveyed to the trustees, for separate hprse-sheds, for the individual convenience of attendants on the church, building them for their own use, was a revocable license, and a resumption of possession, and fencing in the property, allowing a sufficient time, after notice was given, to remove the sheds, was lawful, so as to render the subsequent removal of the fence and sheds a trespass.
    
      What not a lease. A license for such a use of the land, for the convenience of persons attending public worship, did not amount to a lease.
    
      Official character, how proved. Where the question of official character arises collaterally, parol evidence is admissible to show an actual incumbency de facto.
    
    
      Matters in aggravation of trespass: Malice: Arrest of owner. In actionB of trespass, evidence of malice and attendant circumstances may be given in aggravation of damages; and the rule ia the same where the facts in aggravation might have been made the ground of a separate action. The maliciouB arrest of the owner of land, to keep him out of the way during a trespass on his lands, was proper .to be shown in an action for the trespass.
    ■ Costs in trespass on lands. Costs are given to the prevailing plaintiff in trespass, without reference to the amount of damages recovered, in all cases where the title to land, or any right to any easement therein, or to overflow it, or do any other injury thereto, is put in issue by the pleadings, or brought in question on the trial.
    
      Heard April 11.
    
    
      Decided April 18.
    
    Error to Washtenaw Circuit.
    The opinion contains a statement of the case.
    
      S. E. Engle and II. J. Beakes, for plaintiff in error,
    on the question of damages, cited: Sedgwick on Dam,., [155] note c. [454] and [467]; Merest v. Harvey, 5 Taunt., 442 ; Sears v. Lyons, 2 Starkie, 317; Goddard v. G. T. R. R. Co., Law Reg., Jan., 1871; and that a license, coupled with no interest to do an act upon the lands of the licenser, is reyocable at any time, and is thenceforth void.— Wood v. Leadbitter, 13 M. & W., 843; Fentinam v. Smith, 4 East, 107; Wallis v. Harrison, 4 M. & W., 538; Cocker v. Cowper, 1 Cr. M. & R., 418; Mumford v. Whitney, 15 Wend., 385; Pierrepont v. Barnard, 2 Selden, 288; Jameson v. Milleman, 3 Duer, 255; Pratt v. Ogden, 34 N. Y., 22; Selden v. Canal Co. 29 N. Y., 637; Miller v. R. R. Co., 6 Hill, 61; Wolf v. Frost, 4 Sandf. Ch., 93; Tillotson v. Preston, 7 Johns., 285; 1 Washb. R. Prop., “License”; Stevens v. Stevens, 11 Met., 251; Cook v. Stearns, 11 Mass., 533; Pond v. Pond, 14 Mass., 403; Cheever v. Pearson, 16 Pick., 266; Ruggles v. Le Sure, 24 Pick., 187; Bacheler v. Wakefield, 8 Cush., 243; Burton v. Schupf, 1 Allen, 134; McRae v. Marsh, 12 Gray, 211; Owen v. Field, 12 Allen, 457.
    
    
      Norris & Uhl and C. Joslin, for defendants in error,
    on the question of damages, cited: Allison v. Chandler, 11 Mich., 549, and 10 Penn. St., 145; and as to parol proof of official character, 1 Greenleaf’s Ev., § 92 and cases cited; and on the question of revoking the license, James v. Morey, 2 Cow., 246; Jackson v. Roberts, 1 Wend., 478; Street v. Dow, Harr. Ch., 427; Adair v. Adair, 5 Mich., 204, 218; Schwarz v. Wendell, Walk. Ch., 267.
    
   Campbell, Ch. J.

Plaintiff brought trespass guare clausum, etc., against defendants for breaking his close and committing various grievances, including, besides the removal of certain fences and sheds, an imprisonment of his person.

Defendants, under the general issue, gave notice of license, and also of title in a Baptist church, of which they were trustees, and as such did the acts in question.

It appeared that plaintiff owned a farm adjoining the church lot, and on the 26th day of November, 1867, entered into a contract, purporting to be with the trustees, whereby, as soon as the trustees could get legal authority to act, plaintiff was to deed, by warranty deed, to the church the lot they occupied and a part of his adjacent premises, and the church was to quit-claim to him the half-quarter section including the farm and church premises, and agreed to occupy the land, deeded by him, for church purposes, parsonage, sheds, etc., to build their erections at certain places, and not to sell the premises for any other purpose, except for farming purposes.

On the same day plaintiff gave verbal permission to build horse-sheds on that part of his land which was ultimately to be conveyed to the church, and the trustees set back the fence and began to prepare the land, and had got the sills laid upon the ground, when further work was suspended by reason of the cold. Early in April the work was about to be resumed, when, according to plaintiff’s proofs, he revoked his permission, and refused to allow anything more to be done. The parties, however, went on and built their sheds. About fifteen months thereafter plaintiff moved back his fence so as to include the sheds, and four days later defendants took down the fences, removed the sheds, and committed the trespass complained of. The. sheds were for the individual use of such as paid for them, and were seventeen in number.

The principal errors assigned relate: First, to the rulings of the court, touching the respective rights of the parties concerning the premises in question; and, Second, to the elements which might enter into the case as causes of damage. There are also some minor questions.

The court held that if the sheds were built by plaintiff’s permission, for the uses contemplated, they and the land in front of them, necessary for access, were in the possession of the church, and plaintiff could get no lawful possession again, except by voluntary surrender or upon legal process; and that any other taking of possession or fencing would be tortious, and make him a wrong-doer, and the trustees might lawfully remove his fence, and take off the sheds, without becoming trespassers. It was further laid down, that if the trustees entered the land and erected the sheds “ under or upon the conditions of the contract, or agreement to exchange lands, which was afterwards reduced to writing, then by the terms of that contract it was the duty of the plaintiff to tender to the trustees of said society a deed of conveyance of the premises- therein agreed to be conveyed by him, so as to offer to perform on his part, before taking steps to revoke the license, or gain possession / of the lands where the sheds were.”

There is no right of possession secured under a contract for the sale or exchange of land, before conveyance, unless directly provided for. In many cases such provision is made, but it is not implied from the agreement to sell. In this written contract there is no such provision, and nothing looking towards it. The trustees who covenant for the future transfer make no absolute and positive stipulation to sell or purchase, but only agree to do so in case they gain legal authority, which of course would be uncertain. The whole contract was made contingent, and no step was to be taken by either party until then. The grant of immediate possession would be rather inconsistent with the contract than conformable to it, as everything was future and uncertain. And, inasmuch as the quit-claim from the church to the plaintiff was to cover the whole church lauds, it is manifest it must precede and not follow the deed from the plaintiff, or it would divest the society of all that the contract was intended to secure. Until the church should deed to the plaintiff he was not called upon to do anything.

And there could be no possible legal connection between the parol license and the written contract. If the possession was to be regarded as taken under a parol agreement afterwards reduced to writing, then, inasmuch as no such agreement can rest partly in writing and partly in parol,, the writing would supersede everything else, and its terms do not sanction any claim of possession. The right, whatever it may have been, can only be maintained at all on the ground of a parol license, — for a parol contract, such as is referred to, would not have been valid. And a parol license, — whatever right, it may give to remove erections, made under it, — is revocable at any time. Such we regard as the only doctrine consistent with the statute of frauds-No error is assigned in regard to the right of ownership of what was erected, but the verdict, finding the defendants trespassers, can only rest on the absence or revocation of the license, and if revoked it was before the sheds were built, and the lapse of time between the revocation and the trespass exceeded any possible term required by reason or' necessity to remove them. And whether they were liable for their value or not, they were no less trespassers. We are not called upon, therefore, to pass upon any of these proprietary claims to the property removed.

The suggestion that the parol permission may be construed into a lease at will, has been disposed of by what has already been said in regard to the agreement. But as no possession of a continuous kind was contemplated, and as the object of the license was merely to allow particular persons, at times when they should attend the church, to enter upon the premises to shelter their animals and vehicles for brief periods, the case is not distinguishable from that of a license to go upon fair-grounds, or other places of lawful resort, on occasions when they are in use for specific purposes.

It is manifest that the rulings of the court were all made upon the assumption that the permission was lawfully connected in some way with the written contract. We think the entire theory was based on insufficient grounds, and that the rulings were erroneous.

It was alleged as error, that parol proof was admitted,— that certain of the defendants were acting trustees of the church. But- the rule is well settled that, except for some peculiar purposes, such evidence ’ is sufficient. The court could not try titles to office in any such litigation as the present. — Call v. Kalamazoo Mutual Ins. Co., 2 Doug., 124.

The principal additional errors complained of relate to the exclusion of testimony to show the disposition and spirit with which the trespass was committed, and the malicious arrest of the plaintiff, to get him out of the way while the trespass was to be consummated.

The rule is so well settled, which allows a jury in all actions of tort to consider all the contemporaneous acts bearing on the malice or absence of malice, and the circumstances of aggravation, in determining the amount of damages, that it was not disputed upon the argument, except as to the personal arrest, which it was claimed would have been a ground of action by itself, and therefore should not have been considered here.

The authorities, however, clearly recognize the right to recover damages for any su’ch injury done in connection with the wrongful intrusion, as an act of aggravation in an action for trespass on lands. — Sedgw. on Dam., Ch. 5; 2 Stark. Ev., 813, and cases. The importance of evidence, as to motives, was considered in Detroit Daily Post Co. v. McArthur, 16 Mich., 447; and willful trespasses, accompanied by manifestations of insult or any other aggravating conduct, cannot be regarded in the same light with acts done under a belief of right, without confounding things essentially different.

The rejection of this evidence, however, is claimed by the counsel for defendant in error to have arisen from the admission on the trial that nothing was in issue but the ownership of the property; and reference is made to the language of the court, intimating that to be the only controversy. The court seems to have gathered that impression entirely from its own view of the rights of the parties under the negotiations, concerning which we have already expressed our opinion. But it appears distinctly that the counsel for the plaintiff, in opening his case, dwelt very fully on all these supposed matters of aggravation, and waived none of them. Of course he was not obliged to accept any suggestion which would narrow his case, and he had a right, therefore, to offer his proofs and allege error on their rejection, which, in our view, was erroneous.

Upon the question of costs we also think there is error in the judgment. The statute gives costs to the plaintiff, who recovers any sum in trespass, however small, where “ the title to lands or tenements, or a right of way, or a right by prescription or otherwise, to any easement in any land, or to overflow the same, or to do any other injury thereto, shall have been put in issue by the pleadings, or shall have come in question on the trial of the cause.” — 2 C. L., 5697.

Both title and license were set up in the notice under the general issue, which is, under our practice, the only admissible form of pleading such matters, and each is within the clear intent of the statute.

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

The other Justices concurred.  