The land which Bidwell sought to recover in this case is a strip twenty-seven feet in width across the north end of the south half of the east half of the southwest quarter of section seventeen in township four south of range one west in Jackson county. Bidwell has a paper title to this forty-acre lot, which he acquired in 1879, and he owns and has resided for many years on the forty acres adjoining it on the west. Bunee owns the north half of the east half of said southwest quarter, and resides upon it.
In 1869, however, while Mrs. Sexton owned the south forty of the east half of the quarter section, Bidwell and herself desired a new survey, and called in one Growl to make it. There is some evidence that Bunce assented to this survey, but .none that he agreed tó be bound by it, and he did not actually take any part in it. It was made however, and the error in the former survey was discovered, and the true line marked out. Bidwell claims and offered some evidence to show that Bunce subsequently recognized the true line, assented to a division fence being erected upon it, and drew stone for building a part of the fence himself. Bunce denied this. It was shown that Bidwell moved over a part of the fence to the line of the Crowl survey, but Bunce moved it back again. Bidwell afterwards brought this suit.
I. Bunce testified on the trial that he claimed the land on which he resided as his homestead; and it was thereupon objected by his -counsel that the suit was defective for want of parties; the wife having rights in the homestead, inalienable except by her own act, and which made it necessary that she should be joined in any suit involving the homestead or any part of it, since otherwise the dispossession of the husband must dispossess her also without an opportunity to defend her rights, or compel a separation of the family. Hodson v. Van Fossen 26 Mich. 68. But as the Constitution and statutes only
But it is said that inasmuch as this strip of land might be claimed by the wife as a part of her homestead, there can be no right to adjudge her claim to be unfounded in a suit to which she is not a party and in which she has no opportunity to present her view of the facts. But if the mere fact that a woman may assert a homestead right renders her a necessary party to an ejectment suit, the wife of a defendant, or a woman living in his house and falsely assuming or claiming to be his wife, might become a necessary party in any case. However baseless or absurd the claim may be in a particular case it may always be made; and if it must always be tried # in a suit against the woman herself when she sees fit to make it, she must always have the power to make herself a necessary party. This would seriously embarrass legal proceedings without any corresponding advantage to any one; for no one pretends that a judgment against the husband alone for that which constitutes the homestead or any portion of it, can be made use of as an estoppel against the wife. Her remedies, including the right to retain possession as against any one claiming under or adversely to her husband, remain the same as before, and the just protection of her rights does not therefore require that she should always be a party to suits against her husband. It would be prudent, perhaps, to join her in all cases in
II. The principal question in the case arises upon the adverse possession of Bunce, and the charge of the court upon the effect of his recognition and acquiescence in the survey made by Growl. It is conceded that if Bunce occupied the disputed strip of land for twenty years, adversely to the owner of the south forty — the real owner of the strip, — he thereby acquired a right thereto which he could defend notwithstanding the possession originated in error. Smith v. Hamilton 20 Mich. 433; Dupont v. Starring 42 Mich. 492; Chapman v. Crooks 41 Mich. 595. And it is now settled that this is not a right' of defense merely, but it is for all practical purposes a title, and affirmative remedies might be had upon it as against the original owner should he afterwards succeed in obtaining possession. Brent v. Chapman 5 Cranch 358; Leffingwell v. Warren 2 Black 599; Jackson v. Dieffendorf 3 Johns. 269; Reed v. Farr 35 N. Y. 113; Reformed Church v. Schoolcraft 65 N. Y. 134; Moore v. Luce 29 Penn. St. 260. A subsequent survey should not have undertaken to disturb the lines possession had thus fixed. Diehl v. Zanger 39 Mich. 601.
The circuit judge instructed the jury that if the defendant and those under whom he claimed had occupied the disputed strip adversely for twenty years previous to the commencement of suit, the plaintiff could not recover; that the occupancy to be sufficient for the purpose must have been actual, visible, notorious, continuous, and hostile to the right of the owner of the south forty for the whole period, and should have been under a claim of right. If the jury found such an occupancy they were told it was of no consequence that it originated in mistake. On the other hand they were instructed that if they found that the defendant agreed or assented to the line designated in the Growl survey, as the true line, and consented that the plaintiff should construct his part of the
All the evidence is returned with the record, and we do not think it shows that the defendant had established an undoubted right to the land in controversy by adverse possession. It' shows beyond doubt, apparently, that the parties for twenty-five years acted on the supposition that the Yan De Bogert survey was correct, but it does not show that they ever assented to abide by it, or that they occupied on the respective sides of it claiming it to be accurate. It is consistent with everything shown in the ease that the parties contemplated that at some, future time, when it should be convenient, or when the value of this little strip should be sufficient to make it worth while, they would have a more careful survey made. If such were the case, mere occupancy of the disputed strip would not be sufficient to give title, and the judge would be correct in instructing the jury that when the mistake was discovered and the possession voluntarily restored to the owner of the paper title, the right of the previous possessor to claim by adverse possession would be gone. We are inclined to think the instruction given was justified upon the evidence in the case. Enough was shown to warrant the jury in finding title in Bunce by adverse possession, but it was not conclusive, and might be met and overcome by evidence that Bunce did not claim or rely upon such a title. And his acquiescence in the new survey would be very cogent evidence to that effect. It seems highly probable that the jury erred in the conclusion they reached, but that was not the fault of the court.