This was an action of ejectment, and the defense relied upon was the Statute of Limitations.
I. Defendant having shown his possession for the requisite length of time, under tax titles which are now conceded to be invalid, was suffered to prove that the land was generally understood to be and called his, in the neighborhood. Exception was taken to this evidence, but we think it was competent. It tended to establish the notoriety of defendant’s possession, and claim of title; which were important facts in his defense.
II. The circuit judge was requested to instruct the jury that defendant to complete his defense must show that his possession for the requisite time was actual, continued, visible, notorious, distinct and hostile. The judge gave the instruction with the omission of the last three qualities, and refused to give it otherwise. Why he thus limited it does not appear and we cannot surmise. The request was entirely proper, and should have been given : Yelverton v. Steele 40 Mich. 538. It cannot be said that the instruction given covered the case, for a possession may be actual, continued and visible, without being either notorious or hostile, and no possession can be adverse within the intent of the Statute of Limitations that lacks either of these qualities.
"Where possession is held by claim of title under a tax deed, it is perhaps of necessity hostile to the title of the claimant under the original title; and as that was the nature of defendant’s claim in this case, we might overlook the
The defendant claimed a possession which was more constructive than actual, and which was limited in the main to cutting timber. He did not live on the land, and there were not at all times upon it visible evidences that any person was in occupancy. A passer-by, looking at the land, might have inferred that it had been the subject of frequent trespasses, without ever having been in the actual possession of any ■claimant. The facts respecting possession were so equivocal as to invite different conclusions from different minds, and there is much reason to believe the jury may have been misled by an instruction which left them to understand that notoriety and distinctness in the possession were unimportant. We think we have no alternative but to order a new trial with costs to the plaintiff.