Humphrey v. Hurd

• Decision Date: 29 January 1874
• Citation: 29 Mich. 44
• Court: Michigan Supreme Court
• Parties: George P. Humphrey v. Charles H. Hurd and others

29 Mich. 44

George P. Humphrey v. Charles H. Hurd and others

Supreme Court of Michigan

January 29, 1874

Submitted on Briefs January 9, 1874

Error to Cheboygan Circuit.

Ejectment. Plaintiff brings error. Reversed.

Judgment reversed, with costs, and a new trial ordered.

W. S Humphrey and Trowbridge & Atkinson, for plaintiff in error.

George W. Bell and D. C. Holbrook, for defendants in error.

Cooley J. Graves, Ch. J., and Campbell, J., concurred. Christiancy J., did not sit in this case.

OPINION

Cooley, J.

This was an action of ejectment commenced in 1872 to recover certain premises in Cheboygan. The plaintiff claimed title through several intermediate conveyances from Jacob Sammons, who deeded to William Scott, February 23, 1850. Scott deeded to Bela Chapman, February 27, 1851, taking back a mortgage for the purchase price, payable in lumber. Sammons seems to have remained in possession after having deeded to Scott, and on November 29, 1851, Scott assigned to him the Chapman mortgage. On the same day Sammons gave a mortgage of the premises to one Douseman, and a year later gave a deed to one Belote, under whom Baker, the real party in interest as defendant, now claims. Baker relied, in part at least, upon adverse possession; but there was evidence that the premises had not been continuously occupied since Sammons deeded to Belote, but on the other hand had been unoccupied for the greater part of the time. On request of the defendants the court charged the jury that if they should find Sammons was in possession at the time the Chapman mortgage was assigned to him, and that Chapman and his grantees have not been in possession since, it must be presumed, as matter of law, that the defendants claim and hold under the conveyance from Sammons to Belote, and the others proved in the case, and the plaintiff cannot recover. Under this instruction the jury gave verdict for defendants.

We have been unable to concur in the view taken by the circuit judge of this case. Sammons, remaining in possession after deeding to Scott, was presumptively holding in subordination to his conveyance.-- Bloomer v. Henderson, 8 Mich. 395; Dawson v. Danbury Bank, 15 Mich. 489.

This presumption would be strengthened instead of weakened by his taking an assignment of a mortgage given on a sale of the premises by his grantee, as that act would be inconsistent with any idea that he was then claiming adversely to...