Hendricks v. Rasson

42 Mich. 104 | Mich. | 1879

Cooley, J.

The circuit judge was under misapprehension when he instructed the jury that the plaintiff could not recover if they found that another person than the defendant was with him in occupation of the premises.- The evidence to show possession.in another tended to establish the fact that defendant’s father occupied a distinct part of the house. If such was the fact, it would have been proper to join him as defendant (Comp. L., § 6207), but the suit would not fail for the non-joinder. The only effect upon the verdict would be to limit the recovery by excluding that which the father occupied. Comp. L., § 6206. The case ,bears no resemblance to Hodson v. Van Fossen, 26 Mich., 68, where the possession in question was that of husband and wife, and incapable of severance on judicial process.

The case does not show that the father claimed a right to occupy and enjoy the whole land jointly with the defendant; but if it had, the plaintiff would have been entitled to go to the jury on that question. The charge was broad enough to put the plaintiff out of court on the fact — which seems not to have been disputed— that the father occupied a part of the house.

The judgment must be reversed with costs and a new trial ordered.

The other Justices concurred.