218 Mich. 179 | Mich. | 1922
On October 28, 1874, Louis Seifferlein acquired title to the west half of the west half of the northeast quarter of section 85, township of Warren, Macomb county. On December 24, 1872, John Michael Seifferlein and his wife, Emiline, acquired title to 20 acres adjoining this 40 on the west. It would appear, although the deed is not in the record, that they then owned the 20 acres on the west of this 20, so that they owned a long 40. Louis Seifferlein was the husband of the plaintiff and John Michael Seifferlein was his uncle. The Grand Trunk railway ran diagonally through these two 40’s, cutting off a triangular piece in the northwest corner of the 40 then owned by Louis. This triangular piece fronted on the highway and adjoined lands cropped by John Michael. After these parties had acquired their title, and probably about 1880, they entered into an arrangement that John Michael should work this triangular piece and Louis should work an equal amount of John Michael’s land, and with a tape line they measured off a triangular piece of land on John Michael’s 40 adjoining Louis’ land which he was to work. This arrangement was made to save the inconvenience and hazard of crossing the railroad. While defendants claim in their answer that this agreement was an agreement to exchange titles to these triangular pieces of land there is no testimony to support such claim and all the testimony shows that the possession by each of the other’s triangular piece was permissive only. Defendants’ Exhibit 1 shows the situation and is quite necessary to its understanding, and we, therefore, make it a part of the opinion. These triangular pieces are designated on the exhibit as “easterly tri-
angle” and “westerly triangle.” But the witnesses speak of them as the “north” and “south” triangles and they will be so designated in this opinion.
Louis Seifferlein is now deceased. Before his death and in the spring of 1915 he placed the title to his 40 in himself and wife as tenants by the entirety and she now claims title as survivor. From the making of the arrangement in 1880 down to and including the year 1915 and until about the time the Grand Trunk sought to acquire the north triangle, it was worked in connection with the John Michael Seifferlein 40 and the south triangle was worked in connection with the Louis Seifferlein 40. Early in 1916, the Foersters, father and son, called on plaintiff, her husband being then deceased. The detail of their conversation is in dispute. Mr. Foerster then claimed to own the north triangle by adverse possession. There is no testimony that he had before this time made such claim to either plaintiff or to her husband before his death; Mr. Foerster was evidently willing to give something to clear up the title. Plaintiff claims that
Let us restate the facts we find established: John Michael Seifferlein and his nephew Louis Seifferlein owned adjoining 40’s, both traversed by the Grand
Upon these facts no difficult questions of law arise. This court has spoken so many times on the subject that we need not again review the authorities. Permissive possession so long as continued does not ripen into title by adverse possession; possession to be adverse must be hostile in addition to being actual, continued, visible, notorious and distinct, and it must be established by clear and cogent proof. It is not established in the instant case, but on the contrary the proofs establish that it was not hostile, therefore not adverse.
Two questions are raised on the admissibility of testimony which should be considered. John Michael Seifferlein was called to establish the arrangement between him and his nephew Louis. Counsel for defendant most strenuously urged that the testimony should not be received against the defendant Foerster, the arrangement not being with him and not binding on him. We think plaintiff’s counsel pursued the orderly course. He proved (1) that the arrangement was made, and (2) that it was brought
“If defendant had in good faith intended to claim the entire title it is difficult to understand why if should have permitted one-third of the premises to be assessed to plaintiff and his predecessors for 15 years, knowing, as it must have, that when they paid the taxes they did so in the belief that they were the undisputed owners thereof. The fact that defendant permitted this to be done for 15 years is very persuasive that it did not intend, during that time, to claim the entire title. While it is not conclusive of the intent, it is a circumstance to be taken into consideration in determining defendant’s intention” (citing authorities).
It follows from what has been said that the decree must be affirmed. Plaintiff will recover costs of this court.
right of one in permissive possession of real property to acquire title by adverse possession, see note in 12 L. R. A. (N. S.) 1140.
On hostility as essential element in adverse possession, see note in 15 L. R. A. (N. S.) 1192.