29 Mich. 44 | Mich. | 1874
This was an action of ejectment commenced in 1872 to recover certain premises in Cheboygan. The plaintiff claimed title through several intermediate conveyances from Jacob Sammons, who deeded to William Scott, February 23, 1850. Scott deeded to Bela Chapman, February 27, 1851, taking back a mortgage for the purchase price, payable in lumber. Sammons seems to have remained in possession after having deeded to Scott, and on November 29, 1851, Scott assigned to him the Chapman mortgage. On the same day Sammons gave a mortgage of the premises to one Douseman, and a year later gave a deed to one Belote,. under whom Baker, the real party in interest as defendant, now claims. Baker relied, in part at least, upon adverse possession; but there was evidence that the premises had not been continuously occupied since Sammons deeded to' Belote, but on the other hand had been unoccupied for the greater part of the time. On request of the defendants the court charged the jury that if they should find Sammons was in possession at the time the Chapman mortgage was assigned to him, and that Chapman and his grantees have not been in possession since, it must be presumed, as matter of law, that the defendants claim and hold under the conveyance from Sammons to Belote, and the others proved in the case, and the plaintiff cannot recover. Under this instruction the jury gave verdict for defendants.
We have been unable to concur in the view taken by the circuit judge of this case. Sammons, remaining in possession after deeding to Scott, was presumptively holding in subordination to his conveyance. — Bloomer v. Henderson, 8 Mich., 395 ; Dawson v. Danbury Bank, 15 Mich., 489.
This view requires a reversal of the judgment.. The record presents a further question regarding the admissibility in evidence of the record of Baker’s deed, but as we cannot see how that was material, and cannot suppose it will arise again, we do not consider it.
The judgment must be reversed, with costs, and a new trial ordered.