Bailey v. Bailey

• Decision Date: 10 April 1877
• Citation: 36 Mich. 181
• Court: Michigan Supreme Court
• Parties: Robert M. Bailey and another v. Adelaide A. Bailey and others

36 Mich. 181

Robert M. Bailey and another v. Adelaide A. Bailey and others

Supreme Court of Michigan

April 10, 1877

Submitted on Briefs January 19, 1877

Error to Lenawee Circuit.

Judgment affirmed, with costs, and the record remanded.

Stacy & Underwood, for plaintiff in error, argued that the evidence relating to the statements of the brothers and sisters of Ira Smith as to whether they had heard from him was pure hearsay, and that the inquiries should have been made at his last place of residence in California; that the plaintiffs to recover were bound to prove not only possession by their co-tenants, but actual ouster or its equivalent that a mere denial of plaintiff's right is not enough, but it must be such as to amount to a disseizin of the co-tenant.--Edwards v. Bishop, 4 N. Y., 61; Ricard v. Williams, 7 Wheat. 59; that our statute is the same as that of New York was originally, and their statute has been held to be simply an affirmance of the common-law rule.--Phelan v. Kelley, 25 Wend. 389. See also Bogardus v. Trinity Church, 4 Sandf. Ch., 633.

Walker & Weaver, for defendants in error, on the competency of the evidence to prove by circumstances the death of Ira Smith, cited.--2 Greenl. Ev., p. 265, § 278, e, f, g, h; Jackson v. Bonham, 15 Johns. 227; Stevens v. McNamara, 36 Me. 176; Smith v. Knowlton, 11 N. H., 191; Doe v. Jesson, 6 East, 80; King v. Paddock, 18 Johns. 141; Sheldon v. Ferris, 45 Barb. 124; that after the lapse of seven years without intelligence of the person the presumption of life ceases, and the burden of proof is devolved on the other party.--1 Greenl. Ev., 41, notes and cases cited; that the proof of disseizin was sufficient under the statute to warrant the jury in finding an ouster.--Comp. L. 1871, § 6228; that the assertion by one in possession, that he is sole owner, and his selling, or offering to sell the whole, are equivalent to an express denial of conflicting rights.--Freeman on Co-tenancy & Partition, 234; Valentine v. Northrop, 12 Wend. 495; Carpenter v. Thayer, 15 Vt. 556; Helwigs v. Bird, 11 East, 50; Clark v. Vaughn, 3 Conn. 191; Giddings v. Canfield, 4 Conn. 488; Allyn v. Mather, 9 Conn. 128; Cummings v. Wyman, 10 Mass. 468; Humbert v. Trinity Church, 24 Wend. 589; 1 Add. on Torts, 423, 121; that if one enters under a deed with full covenants of warranty, and exercises acts of ownership over the whole, there is no room left for doubt that he holds adversely to any other part owner.--Freeman on Co-tenancy, etc., 224; Tyler on Eject., 480-2; Thomas v. Pickering, 13 Me. 337; Marcy v. Marcy, 6 Metc. 371; Wright v. Saddler, 20 N. Y., 329; Kithredge v. Lacks, 17 Pick. 247; Biglow v. Jones, 10 Pick. 161; Bogardus v. Trinity Church, 4 Sandf. Ch., 633; Van Dyck v. Bensen, 1 Caines 84.

OPINION

Marston, J.:

Plaintiffs below, defendants in error, brought an action of ejectment to recover possession of an undivided one-eighth of certain real estate situate in the township of Adrian, Lenawee county; jury trial, verdict and judgment for plaintiffs.

Plaintiffs and defendants both claim title through Daniel Smith, who died in April, 1845, leaving eight children, one of them named Ira, whose interests the plaintiffs below claimed to have acquired by conveyance from his heirs in 1871. The most important questions raised in the case grow out of the evidence introduced tending to show the death of Ira. It was claimed, and evidence was introduced tending to show, that Ira went to California in 1852 or 1853, and that he had not been heard from since 1856. Simeon Bailey, who went to California in 1855 and remained there till 1867, was examined and testified that he commenced making inquiries in California about Ira in 1856, in the neighborhood where he had been; that he heard different reports about Ira's leaving this place; some said he had gone on a prospecting tour, some that he had been drowned while crossing a stream; and that although witness continued his effort to find Ira so long as he (witness) remained in California, he could obtain no trace of him. As evidence tending in the same direction, Sala Smith, a brother of Ira's was called and testified that Ira had gone to California in 1852 or 1853; that Ira's wife had received letters from him after he went away; that he (witness) had been living most of the time near where the wife and children of Ira had resided. He was then asked the following questions:

"State whether since 1856 you or any of the family, so far as you know, have ever heard from Ira."

"Have you made inquiries from your brothers and sisters to ascertain whether they have heard from him, or know any thing about him? And if so, state the result."

These questions were all objected to, objection overruled, and answered. The amount of evidence required to establish death depends very much upon the nature of the case in which the question arises. In cases like the present "oral evidence indirectly proving death, consists of those circumstances from which the death of the person may reasonably be inferred, such as long absence without any intelligence respecting him, reputation in the family, and their conduct thereupon, and other circumstances." "The presumption of life, with respect to persons of whom no account can be given, ends at the expiration of seven years from...