This is an action in ejectment brought by plaintiff, Meyer Smelsey, against Guarantee Finance Corporation and Aubrey Gooze, doing business as Guaranty Management Company, as the principal defendants. The parties in physical possession of the premises as tenants under the principal defendants are also joined as defendants. The property involved is a 1/4 interest in a dwelling house located at 2819 Fourth Street, Detroit, Michigan.
In 1895, Mary R. Hascall was the owner of the above property. She died, and in 1925 her husband, Jeremiah H. Hascall, became the owner. Jeremiah H. Hascall died intestate, and on May 24, 1927, an order was entered in the Wayne county probate court assigning the residue of his estate to his heirs. *Page 676 The 1/4 interest involved herein was assigned to Mary E. Moore, a sister of deceased, who, on August 2, 1927, conveyed the same to Robert Hascall Moore. On May 5, 1943, Robert Hascall Moore and wife conveyed their undivided 1/4 interest to plaintiff by quitclaim deed, and the same was recorded May 17, 1943, at 12:33 p.m.
It also appears that Robert Hascall Moore on June 15, 1936, deeded the same quarter interest to defendant Guarantee Finance Corporation. This deed was recorded 46 minutes after plaintiff's deed was recorded.
As a further statement of facts the record shows that on January 8, 1926, Jeremiah H. Hascall entered into a land contract for the sale of said premises to Leslie A.B. Walsh. This contract was not recorded. After the execution of the above contract Jeremiah H. Hascall died intestate and his estate was the subject of probate proceedings in the Wayne county probate court. Subsequently, an order was entered allowing the final account and assigning the residue of said estate to the heirs at law as follows: 1/4 interest to George Hascall; 1/4 interest to Mary E. Moore; 1/8 interest to Elton F. Hascall; 1/8 interest to Florence Butler; 1/8 interest to Jennie M. Smith; and 1/8 interest to Nellie Stoddard.
On November 21, 1928, Leslie A.B. Walsh assigned his interest in the land contract to Laurier Schantz. This assignment was not recorded.
On April 3, 1936, Laurier Schantz and wife assigned their interest in the contract to Guarantee Finance Corporation. This assignment was not recorded, but since said date defendants, by their tenants, have been in possession.
On June 12, 1936, Florence Butler and Jennie Smith conveyed their interest in said property to *Page 677 Guarantee Finance Corporation. This instrument was recorded.
July 25, 1936, Nellie Stoddard and Elton F. Hascall conveyed their interest in said property to Guarantee Finance Corporation. This instrument was also recorded.
It also appears that one Meyer Ostrow was the agent of plaintiff. Mr. Ostrow's business was the buying and selling of real estate. He made the purchase of the property for plaintiff. Before he purchased the property he searched the records in the office of the register of deeds for Wayne county and found a record of a deed to the Guarantee Finance Corporation of a 1/4 interest in the property he was about to purchase. He also checked the tax rolls and found a Mr. Hackett's name as one to whom the property was assessed. He contacted Mr. Hackett but Mr. Hackett disclaimed any interest in the property. He then consulted the Burton Abstract Company and found a quitclaim deed from Florence Butler and Jennie Smith to Guarantee Finance Corporation of their interests in the property. He also went to the premises and inquired of the tenant as to what rights she claimed in the property, but was given no information except that she was running a rooming house. He made no inquiry of defendants, claiming that defendants were attempting to buy the same rights as he was attempting to buy, and he believed he would get information from them which would be misleading.
The sole question in this case is whether plaintiff, Meyer Smelsey, by having recorded his quitclaim deed from Robert Hascall Moore and wife 46 minutes before defendants recorded their quitclaim deed, executed by the same grantor some seven years before, has, by virtue of the provisions of 3 Comp. Laws 1929, § 13304 (Stat. Ann. § 26.547), *Page 678 voided the title and rights acquired by defendants.
The trial court found that plaintiff was the owner of the 1/4 interest, and held that Meyer Ostrow had made sufficient inquiries before making the purchase, as is required by the foregoing statute.
Defendants appeal and urge that plaintiff may not claim the status of purchaser in good faith under the provisions of the statute hereinbefore mentioned. It is the claim of plaintiff that defendants' possession of the premises was not of such nature as to make it constructive notice of defendants' unrecorded claims of title and right of possession in the premises; that plaintiff paid a valuable consideration for the deed; that he purchased the same in reliance upon the recorded chain of title and the records in the office of the register of deeds, and that he made such inquiry as is required by law.
We shall first discuss possession of the premises by the tenant of defendant. The final order of assignment of the probate court vested undivided interests in the premises, and the owners of such interests became tenants in common of the property. When defendants purchased an undivided 1/4 interest in the premises by quitclaim deed from Florence Butler and Jennie Smith on June 12, 1936, and recorded the same on June 8, 1937, they became tenants in common with the owners of the remaining interests. As tenants in common of an undivided interest defendants had a right to possession of the entire premises.
In 7 R.C.L. p. 820, § 14, the rule is stated as follows:
"It is a universal rule that the possession of one cotenant is the possession of all, and each has the present right to enter upon the whole land and upon every part of it, and to occupy and enjoy the *Page 679 whole," citing cases including Metcalfe v. Miller, 96 Mich. 459 (35 Am. St. Rep. 617).
In Metcalfe v. Miller, supra, we said:
"The only characteristic common to tenants in common is that of undivided possession. * * * Not only is the possession of one the possession of all, but the tenants respectively have the present right to enter upon the whole land, and upon every part of it, and to occupy and enjoy the whole."
Under the foregoing authority the possession of the whole premises by defendants was consistent with their rights under their recorded deed to an undivided interest in the premises at the time plaintiff purchased an undivided 1/4 interest. Such possession by the defendants cannot be held to be constructive notice of any claim of additional or greater rights, or place the duty of further inquiry upon plaintiff because of such possession. It is to be noted that no claim is made that plaintiff had any actual notice or knowledge of the unrecorded deed or assignment of land contract. The land contract was in the files of the probate court. In our opinion "a subsequent purchaser in good faith," as mentioned in the statute (3 Comp. Laws 1929, § 13304 [Stat. Ann. § 26.547]) is not required to examine minutely the probate court files of an estate to seek for an unknown land contract.
We are in accord with the following from the opinion of the trial court:
"As to his diligence, his good faith, his notice, the inquiry which he made, the search which he made, I think, considering this record as a whole that he has made a reasonable search. I will put it this way. I think that he has exercised the reasonable diligence required of him by the law before purchasing *Page 680 this property, and that he has conducted himself, as far as this record is concerned, in a manner which satisfies the legal requirements, under the testimony, as to good faith, and the consideration is shown and undisputed."
The record contains competent testimony that plaintiff paid a valuable consideration for his deed and that he purchased said property in good faith. His actions comply with the statutory requirements.
The judgment should be affirmed, with costs to plaintiff.
WIEST, J., concurred with SHARPE, J.