Demill v. Moffat

• Decision Date: 26 January 1881
• Citation: 8 N.W. 79,45 Mich. 410
• Court: Michigan Supreme Court
• Parties: DEMILL and another v. MOFFAT.

8 N.W. 79

45 Mich. 410

DEMILL and another v. MOFFAT.

Supreme Court of Michigan

January 26, 1881

In an action of ejectment the plaintiffs claimed as heirs of one T.; defendant through a deed from T., claimed to have been given in his life-time, by adverse possession, and under a tax title. Elaborate testimony was taken, and it was claimed that plaintiffs' heirship had not been proved, nor death of a plaintiff properly suggested of record. The court charged the jury to find for defendant, which was excepted to. Held, that the case could not be reviewed on the facts. The action of the court was erroneous, and a new trial ordered. A judge should not, except in a very clear case on the evidence, take a case from the jury, and then should not do so without specifying the particular grounds upon which he acts.

Error to St. Clair.

Whipple & Voorhees, for plaintiffs in error.

Brown &amp Farrand, for defendant in error.

COOLEY J.

This is an action of ejectment. The plaintiffs claim title to the land in dispute as heirs at law of one Thorn. The defendant claims through a deed which he alleges was given by Thorn in his life-time to one Hamilton. He also claims by tax title and by adverse possession for 20 years. Elaborate testimony was taken in the court below, at the conclusion of which the defendant would seem to have insisted that the plaintiffs had not proved their heirship, and also that by reason of a failure to suggest of record in due form the death of a plaintiff, the surviving plaintiffs were not in position to take judgment. In this state of the case after argument by counsel, the circuit judge addressed the jury as follows: "Gentlemen of the jury: I have this to say to you; only this and nothing more. The defendant is entitled to your verdict." The jury returned a verdict accordingly, and the whole case is now brought before us on exception to the charge.

This court reviews the judgments of the circuit court in law cases on questions of law only. What question of law is involved in this charge of the circuit judge? Was he of opinion that the plaintiffs had given no evidence tending to the proof of their heirship? If he had said that, we could have reviewed the evidence on that point, and should probably have had no difficulty in pointing out his error. Did he think adverse possession was satisfactorily made out? If so, as that is a defence resting wholly upon facts, it is plain he should have taken the opinion of the jury, unless the facts were unmistakable in their...