Bower v. Earl, 18 Mich. 367

Bower v. Earl

18 Mich. 367 | Mich. | 1869

Campbell J.

Bower brought ejectment against Earl, to recover a small gore of land, having a width of six inches in front, on Main street, Ann Arbor, and widening at the rear to three feet. Bower’s alleged title was derived by mesne conveyances through William C. Voorhees and William Tibbals, from Mulford Martin and Peter Martin, who purchased of Ed*375ward Mundy. The description in the deed from Mundy was as follows: “Being all of that portion of village lot number eight, of range number three, and block number one north of Huron street, beginning on Main street, at the northeast corner of said village lot, and running on Main street aforesaid twenty-one feet south; thence west to the alley in the rear of said lot; thence north to the north line of said lot; and thence east to the place of beginning, with the brick store thereon standing.” Defendant also claimed by purchase from Mundy’s estate of the remainder, or most of the remainder of lot eight. The controversy was whether the gore was covered by the description.

From the testimony of the surveyor who undertook to locate the land on the trial, this gore was made by taking a line due west, and not at right angles with Main street, whereas the defendant claimed that the lines should have been run at right angles, which would have made the description a regular parallelogram, and which would also make it correspond with the building referred to in the deed. The testimony showed that Mundy sold by this description to the Martins, in 1842, and that he and his grantees had retained possession ever since, up to the store line, which defendant claims to be the true boundary. The questions raised on the trial all grew out of matters explaining this possession, or connected with it.

It is quite manifest that some of the difficulties supposed to exist in this case have arisen from the erroneous theory on which the surveyor proceeded; and as the questions of possession are more or less connected with the situation of the lines, we cannot overlook this element in considering the case as presented on the exceptions. The surveyor, after ascertaining in some way what is supposed to be the northeast corner of the lot, assumed that the first course, of twenty-one feet, should run due south, the next one due west. But, having reached the -alley, he followed that, although not in a north and south line, *376to the northwest corner of the lot, and did not run the north line, which, if run due east from the northwest corner, would not have reached the place of beginning.

The description in the deed requires the direction which it calls south, to coincide with Main street, and the direction it calls north to coincide, .with the alley-parallel thereto; and the north line of the lot is said to run east from the northwest corner to the northeast corner. The plat, which is admitted by stipulation as genuine, shows that the lines of lot eight run at right angles with Main street, and that the whole system is rectangular. Inasmuch as the deed refers to the plat, and calls the points of the ¶ compass in accordance with its lines and angles, no survey could be correctly based on any other system; and if, as seems to be the case, the lines are not true meridian or east and west lines, the plat and not the compass should govern. The legal construction cannot be varied, and the guides which the parties chose to indicate and follow, must not be disregarded in the construction of their deeds.

It is a matter of some doubt whether the admitted facts do not render the whole controversy on the exceptions irrelevant; but as the questions raised may possibly be material on any other dispute of location (although the finding c(oes not seem to leave much else open to controversy), we shall proceed to consider them.

Errors are assigned upon the admission of the declar- . ations of Edward Mundy, and of Yoorhees, touching their claims concerning the extent of their ownership. Mundy’s statements were made to Yoorhees, when the latter was building a" store upon their lot for the Martins, and upon that occasion he pointed out where it should be built, and said that was the line, and that the new wall was to be a party wall, when an addition should be built to the store now occupied by defendant. The statement of Yoorhees, which was objected to, was, that when *377m possession, lie only claimed and occupied the store and the land to the alley the width of the store. These statements were objected to as attempts to create title by parol.

They, certainly, could not be any proof of title. But they were introduced for no such purpose. They were properly received to explain the nature of Mundy’s pos. session, and were receivable on the same principle which allows statements as part of res gestee. They create no right, but simply explain a fact, which is not in itself conclusive of anything, and . which derives its legal1 character from its intent and circumstances. Voorhees’ claim while in possession was in disparagement of his own title to the strip in the suit; but we agree with Mr. Greenleaf, that such statements and claims to explain possession are admissible for what they are worth, whether in disparagement of title or not. — 1 Greenl. Ev. § 109.

The court charged the jury that if the premises in question passed, by the deed from Mundy to the Martins, and Mundy and his grantees continued after the conveyance to occupy the same for twenty years, with the acquiescence of the Martins and their grantees in such occupancy, then such occupancy and acquiescence would be a bar to recovery in this suit. And the court refused to charge that if Mundy so remained in possession, such possession would not of itself be adverse.

Counsel for plaintiff in error relied upon Bloomer v. Henderson, 8 Mich. 395, and Dawson v. Danbury Bank, 15 Mich, 489, to show that where a grantor remains in possession after conveyance, he is to be regarded as holding under his grantee, and not by any other claim. Those cases hold that such possession held without change, after a conveyance, is not notice of any other claim as against third persons; but they do not hold that it is incompatible with any other right as against the grantee, if any such right exists, and is not inconsistent *378in fact with the existence of the grant. But where there has been an actual change of possession given by the grantor to the grantee, which purports to be for the purpose of carrying the grant into effect, and where the premises granted are a portion of a larger tract owned by the grantor, his retention up to a certain line, and his surrender beyond it, would naturally indicate that he claimed ownership to that boundary. Where there is an actual change, and the grantee is only admitted within certain lines, the retention of the rest is a distinct occupancy, and, as a possession, stands on the same footing as if held by any other person than the grantor. A right of action would at once arise against the occupant, and that right, where the latter does not in the interval admit it in fact, or by implication of law, would be barred by the lapse of the statutory period of limitation. Where possession has been thus held for that period, it must be shown to have been virtually a tenancy undisputed, at some time in the interval, or the bar is complete. The acquiescence which will prevent the running of the statute, must be that of the possessor in the owner’s claim, and not that of the owner in a possession not acknowledged to be held under him. Acquiescence, which is merely inaction, is the very thing which the statute contemplates as creating the limitation which cuts off the right. As in this case, the evidence showed nothing whatever to contradict the claim or holding of Mundy and his grantees, the plaintiff had no right to the charge refused, which was, under the circumstances, an abstract proposition, and of no importance upon the inquiry before the jury.

The judgment should be affirmed, with costs.

The other Justices concurred.