Call v. O'Harrow

• Decision Date: 20 June 1883
• Citation: 16 N.W. 249,51 Mich. 98
• Parties: CALL v. O'HARROW.
• Court: Michigan Supreme Court

16 N.W. 249

51 Mich. 98

CALL v. O'HARROW.

Supreme Court of Michigan

June 20, 1883

Where the purchaser of land, under the impression that it included a slip claimed by a party deriving title from another, who obtained title from the grantor of the purchaser, enters upon the land and builds and repairs fences, plants fruit-trees and vines in it, cultivates it, and remains in quiet and peaceable possession for more than 20 years continuously such claimant cannot recover the slip from him in an action of ejectment; and in this case the jury should have been so instructed.

Error to Muskegon.

Cook De Long & Fellows, for plaintiff.

C.C Chamberlain, for defendant and appellant.

SHERWOOD J.

Call brought ejectment against O'Harrow for a strip of land about 12 feet wide, being a part of lot 10 in block 13 according to Newell's enlarged and corrected plat, in the city of Muskegon. Plea, general issue, with notice that the strip claimed adjoined lot 9, with which it had been inclosed by fence understood to be on the line between the two lots by the owners and occupants thereof for more than 20 years before suit brought, and that defendant had had the peaceable, uninterrupted possession, occupancy, and use of the strip claimed, cultivating it and growing fruit-trees thereon in connection with lot 9; that he entered into possession in 1858, under a written contract for purchase, and received his deed therefor in 1867, and that the fence inclosing the disputed parcel with lot 9, was built upon a line agreed upon by one of plaintiff's grantors and the defendant.

The facts set up in the defendant's notice all seem to have been substantially proved; in fact, they do not appear to have been controverted; and the testimony further shows without controversy that the defendant's possession had always been under a claim of title which had never been brought in question until about the time of this suit, and that suit was commenced April 10, 1882. The original plat was introduced in evidence, and other testimony given showing that the disputed tract was a part of lot 10, as originally platted. At the close of the trial the counsel for the defendant requested the court to charge the jury: "If the jury find from the evidence that the defendant entered into the possession of the land described in the plaintiff's declaration, in the year 1858 or 1859, under the impression it was land for which he had contracted,...