40 Mich. 538 | Mich. | 1879
This is a writ of error to a judgment in ejectment against the plaintiff where the judge heard the evidence and made an express finding of facts. The objection raised is that the finding does not warrant the judgment. Except in one particular the ease is in substance and effect the same as Yelverton v. Hilliard, 38 Mich., 355.
The action was commenced November 12, 1875, and the defense asserted is that during the ten years next preceding, the defendant and his predecessors in right were in continued adverse possession under tax-deeds from the Auditor General, and that the plaintiff was thereby bound pursuant to the act of 1863. Sess. L.
The facts are conclusively in favor of Yelverton’s right to judgment unless the finding relative to the adverse possession is sufficient to defeat it. This is conceded, and as the finding expressly states that there was in fact such adverse possession- from the 12th of November, 1875, back to January 4th, 1866, we may consider the period for controversy as extending no farther than from that time back to November 11, 1865, an interval of a little less than two months.
The law governing these findings has been many times explained. We recall the following cases: Trudo v. Anderson, 10 Mich., 357; Thomas v. Sprague, 12 Mich., 120; Peabody v. McAvoy, 23 Mich., 527; Feller v. Green, 26 Mich., 70; Compton v. Blair, 27 Mich., 397; Todd v. Davis, 32 Mich., 160; Burk v. Webb, id., 173; Tower v. Detroit, Lansing & Lake Michigan R. R. Co., 34 Mich., 328; Shelden v. Dutcher, 35 Mich., 10; Brown v. McHugh, 36 Mich., 433.
This court has no power in law cases to weigh or construe evidence and make inferences or deduce results. That jurisdiction, is confined to other tribunals. Its authority in reviewing law matters is restricted to ques_ tions of law, and hence though evidence may be reported which a tribunal competent to find the facts might consider abundantly sufficient to make out certain required results, it cannot have any force here. As observed in Thomas v. Sprague, supra, “when a finding of facts is required, it should state something more than evidence; it should state conclusions of fact,” and as laid down in Feller v. Green, supra, where the facts given lead to a very strong inference, the conclusion cannot be drawn here “unless it is so entirely inevitable as in fact to become a conclusion of law.”
The conclusions of fact mentioned are those ultimate propositions of fact, whether few or many, which the
The rule so well settled in this State as to the office and frame of these findings ought to be carefully observed when the claim of adverse possession is set up.
[Che doctrine which sanctions the divestiture of the true owner by hostile occupancy is to be taken strictly, and the case- is not to be made out by inference, but by clear and cogent proof. Brandt v. Ogden, 1 Johns., 156; Jackson v. Sharp, 9 Johns., 163; Kincaird v. Scott, 12 Johns., 368; Jackson v. Schoonmaker, 2 Johns., 230; Gay v. Moffit, 2 Bibb, 506; Huntington v. Whaley, 29 Conn., 391; Coburn v. Hollis, 3 Met., 125.
Tested by these authorities the present finding fails to show an adverse possession from the 4th of January, 1866, for the additional time necessary to make out ten years.
It contains circumstances which are at most evidence on the subject, and on which a finding one way or the other might have been made. No such condition of things is affirmed as the law implies in its definition of adverse possession, and the process of ascertaining facts would have to be carried much further in the direction favorable to the claim of the defendant before it- could be said that nothing remained except to recognize that the ease called for the law of adverse possession. We do not mean that it is needful to use any particular phrase. The view is that there should be an express finding in terms certain and explicit, of a state of facts which without going further would satisfy the legal- definition. The author of the American note to Taylor v. Horde, 2 Smith’s Leading Cases [561], observes that the legal conception of that adverse possession which is required to constitute a bar to the assertion of a legal
Applying this description to that part of the finding in question, and the insufficiency of the latter is manifest. Without stopping to inquire how much is wanting, it is enough that there is no finding in any form of an actual and continued possession, either hostile or otherwise, during the period mentioned.
In Yelverton v. Hilliard it was expressly found that the possession was broken for some weeks. Here it is not found that there was possession during a like period. There the possession was negatived. Here possession is not found. The distinction is plain. The effect may be the same, however. Rayner v. Lee, 20 Mich., 884, is cited to the proposition that slight interruptions in the possession cannot operate to destroy that continuity which the doctrine of adverse possession demands. The case has no application. The objection there made was on the ground that it appeared by the evidence that on brief occasions between the going out of one tenant and the entry of another the premises were not actually occupied. There was no evidence of any intention by the claimant to abandon his right. The suit was in equity to quiet title, and the evidence as well as the law was for the judge. And when it came up on appeal this court was bound to review the evidence and ascertain the facts for itself, and we reached the conclusion that the evidence proved that the possession originally acquired had never been abandoned, and so found. The circumstances of the two cases are not parallel; but if the evidence in the case before us was all returned and equally strong, we could not find the fact.
The case is in the same predicament as Shelden v. Dutcher and Brown v. McHugh, previously cited.
The judgment must be reversed, and one entered here
