Bower v. Earl

• Decision Date: 04 May 1869
• Citation: 18 Mich. 367
• Court: Michigan Supreme Court
• Parties: Henry Bower v. Thomas Earl

18 Mich. 367

Henry Bower v. Thomas Earl

Supreme Court of Michigan

May 4, 1869

Heard April 27, 1869 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Washtenaw circuit.

This was an action of ejectment for a strip of land, part of lot No. 8, in the city of Ann Arbor. The entire lot belonged to Edward Mundy in 1834, who, July 18, 1842, conveyed to Mulford and Peter Martin a portion of the same, commencing on Main street at the northeast corner of said lot, and running on Main street 21 feet south, thence west to the alley in the rear of said lot, thence north to the north line of said, lot, and thence east to the place of beginning. The plaintiff became the owner of this title through several mesne conveyances. The title to the remainder of lot 8 continued in Mundy until his death, and his devisee, by deed dated December 23, 1863, conveyed to the defendant a portion of said lot, described as follows: beginning 21 feet south of the northeast corner of lot No. 8, thence south 23 1/2 feet on Main street, thence west parallel with the north line of said lost 52 feet, thence south 9 1/2 feet, thence west to the west line of said lot, thence north on the west line of said lot 33 feet, thence east to the place of beginning.

The testimony tended to show that before the conveyance to the Martins two stores had been erected on the lot; that the deed to them covered the land on which the north store was situated, and a portion of the premises covered by the south store. That the Martins and their grantees have held possession of the north store ever since the conveyance to them in July, 1842; and Mundy and his devisee and grantee have occupied the south store during the whole of that time. The land in dispute in the suit is that portion of the lot which is covered by the deed to the Martins, but which has been ever since occupied by Mundy, his devisee, and Earl, the grantee of said devisee.

The defense was based on the continued occupancy by Mundy and his successors.

William C. Voorhees, on the part of the defendant below, stated that he occupied the north store under the Martins, having leased it of Mundy, acting as their agent, although the witness had no knowledge of any authority except that he said he was agent. That while so occupying, he built an addition to the store for the Martins, thirty feet in length, in the rear of the store. The witness was permitted to testify, "Mundy pointed out where to build it, and said that was the line, and that this new wall was to be a party wall when an addition should be built to the store now occupied by the defendant."

Witness further testified, under objection, that he claimed and occupied under his deed of the premises, "the store and the land to the alley, the width of the store."

The court charged the jury that if the premises described in the declaration passed by the deed from Edward Mundy and wife to Mulford and Peter Martin, and said Mundy and his grantees continued to occupy the same after said conveyance, for the term of twenty years, with the acquiescence of said Martins and their grantees in such occupancy, then such occupancy and acquiescence are a bar to the recovery of the plaintiff in this suit; to which plaintiff excepted. The counsel for plaintiff then requested the court to charge the jury (if adverse possession was relied upon as a defense) that if the premises in dispute passed by the conveyance from Edward Mundy and wife to Mulford and Peter Martin, and said Edward Mundy remained in possession thereof after the conveyance, such possession would not of itself be adverse to said Mulford and Peter Martin or their grantees; which the said court refused, and to which plaintiff excepted.

A verdict was rendered for defendant.

Judgment affirmed, with costs.

A. Felch, for plaintiff in error:

1. The title to the land could not pass by any parol statement even of the Martins themselves. A deed of conveyance alone could divest the Martins of their title.

a. Such a statement could not operate as an estoppel, because it is not claimed that it was ever acted upon, or that Mundy or his devisee or grantee did anything or suffered anything in consequence of it, or was ignorant of the true line, or was deceived by the other party: 2 Smith's Leading Cases, 745, 748, 767, 768.

b. If any effect could be given to these sayings or acts of Mundy, it would be to transfer back to himself as the owner of the adjoining land, by his own utterance of a few words, the title to the land which he had conveyed to the Martins by warranty deed.

c. But even if Mundy had had full authority from the Martins to sell and convey their land or any portion of it, the most solemn deed made to himself under the power would be invalid. He cannot do by simple parol statement what he could not do by the most formal deed of conveyance.

2. The witness Voorhees testified that he purchased the premises then occupied by the plaintiff, Bower. The counsel for the defendant below then asked the witness this question: "What did you claim and occupy under your deed of these premises?"

A grantee may occupy less than the entire premises without losing any right in the property. He may be mistaken in the lines of his premises, and both occupy and claim less than he is entitled to, without losing his title to any land that is actually covered by his deed. The title can not be thus transferred by an owner, nor can another person acquire his land in such a case without a deed of conveyance, or such adverse possession as bars the right of the owner.

3. The third error assigned is to the charge of the court in the following words: "If the premises described in the declaration passed by the deed from Edward Mundy and wife to Mulford and Peter Martin, and said Mundy and his grantees continued to occupy the same, after said conveyance, for the term, of twenty years, with the acquiescence of said Martins and their grantees, then such occupancy and acquiescence are a bar to the recovery of the plaintiff in this suit."

Title by occupancy was recognized in the old books, but it existed only in case of a tenancy during the life of another person, and has long since become obsolete: 2 Wash. on R. Prop., 457.

Acquiescence in the occupancy of land by another implies consent--a tacit permission to occupy, and precludes the idea of opposition, or a holding adverse to the will of the owner or in denial of his title.

Neither occupancy alone, nor occupancy with acquiescence of the owner can give title. The solemnity of a deed of conveyance to pass real estate is not dispensed with by either or both of these.

Where doubt exists in the description contained in a deed or monuments which are lost, the declaration or acquiescence of parties is admissible, not to contradict the deed, but to show where, in truth, lost or uncertain monuments were. But for the purpose of transferring title, a conveyance in writing, as required by law, cannot be dispensed with: Clark v. Withey, 19 Wend. 320; Terry v. Chandler, 16 N. Y., 354; Tolman v. Sparhawk, 5 Metc. 476.

Even in New York it is held that if the starting point can be found, and the lines accurately run and determined by the courses and distances of the deed, the boundaries must be settled by the terms of the deed, and cannot be altered or affected by parol evidence: Waugh v. Waugh, 28 N. Y., 94.

And that it is not competent to establish a new line by parol agreement: Vosburgh v. Teator, 32 Id. 561.

The bar of twenty years recognized by the statute is not given to occupancy and acquiescence, but to a possession of the disputed premises, which, to be available, must be an actual, continued, visible, notorious, distinct and hostile possession: 2 Smith's Leading Cases, 637, et seq.

4. The fourth assignment of error is upon the refusal of the judge to charge the jury, on the question of adverse possession, that "if the premises in dispute passed by the conveyance from Edward Mundy and wife to Mulford and Peter Martin, and said Edward Mundy remained in the possession thereof after the conveyance, such possession would not of itself be adverse to said Mulford and Peter Martin or their grantees."

The correctness of the principle involved in the charge requested seems to be fully settled by judicial decisions: Bloomer v. Henderson, 8 Mich. 395; Dawson v. The Danbury Bank, 15 Id. 489; Jackson v. Burton, 1 Wend. 341; Swart v. Service, 21 Id. 36.

M. McKernon, for defendant in error:

1. The admission of the witness Mundy was offered for the sole and exclusive purpose of showing, first, what was the understanding and intention of the parties to the conveyance made a short time before, and while they were carrying it out in practice; and, second, for the purpose of showing what, and how much, Mundy did claim at that time; and, third, for the purpose of showing that the understanding was mutual, and acted upon by both parties at that time, and up to the very commencement of this action; and, fourth, for the purpose of rebutting the inferences that might be drawn by the court or jury from the testimony of the surveyor, Professor Wood. This was competent.

The intentions of the parties to a conveyance can always be shown.

So also, declarations of persons made...