McFarlane v. Ray

• Decision Date: 09 October 1866
• Citation: 14 Mich. 465
• Court: Michigan Supreme Court
• Parties: Daniel McFarlane v. Frederick Ray and another

14 Mich. 465

Daniel McFarlane v. Frederick Ray and another

Supreme Court of Michigan

October 9, 1866

Heard October 5, 1866 [Syllabus Material]

Error to Macomb circuit.

The facts are stated in the opinion.

Judgment of the circuit court affirmed, with costs.

Levi Bishop, for plaintiff in error:

1. It is a familiar rule that a party attempting to prove a title to land, must show that it is derived from the sovereign power existing in the country at the time the chain of title originates, or from a source of title common to both parties to the suit.

The general rule in this country is, that all titles to land are derived from the crown or colonial governments before the revolution, or from the states where the title has been vested in the states, or from the United States--all titles having been originally derived from the Indians: 3 Kent's Com., 501, 2.

Courts can take notice of no titles to land which are not thus derived: 3 Kent 502, 3; 4 Johns. 163.

2. The action is for trespass quare clausum fregit. In such a case the plaintiff may, in his declaration, charge the offense to have been committed on his close in the parish or town, etc without stating the locus in quo by metes and bounds. To such a declaration the defendant, if he owned any close in the same parish or town might, under the former system of special pleading, set up his title by plea of liberum tenementum. Then the plaintiff, in his replication, would new assign, specifying the real locus in quo by metes and bounds. In this mode the parties reduced to a certainty the description of the real locus in quo, which was in controversy: 2 Saund. Pl. and Ev., 635-6; Stephen's Pl., 315, 16, 220-26; 2 Selw. Nisi Prius, 1353, 1355-6; 1 Chitty's Pl., 503, 624-5, 528-30.

Under the system of special pleading, if the defendant took issue by a plea of not guilty, upon such a general declaration, the plaintiff was entitled to a verdict, if he proved a trespass by the defendant upon any piece of land which he could prove to be his in the alleged parish or town: 1 Chitty's Pl., 625, 629; 2 Saund. Pl. and Ev., 635-6, 856, 865.

The only plea in the case is the general issue, which is simply a denial that a trespass was committed on the close of the plaintiff. If the plaintiff proved that a trespass was committed on his property, he was entitled to a verdict.

The defendants did not plead liberum tenementum, as they could not under the statute. They gave a notice that they would, on the trial, prove that the locus in quo belonged to them. This was simply saying that the attempt would be made to show that the place, where the wrong was really committed, belonged to the defendants; that defense could have been shown under the general issue, as well as under a notice. In either case the parties were both held to proofs as to the real locus in quo in question. The plaintiff accordingly proved his title, and proved the injury by the defendants, while the defendants offered no proofs touching the question in issue: 2 Greenl. Ev., § 625; 1 Chitty's Pl., 505.

It is only in cases where the plaintiff's declaration is general as to the locus in quo, and the defendant pleads liberum tenementum in like general terms, and the plaintiff takes issue on such a plea without a new assignment pointing out the real locus in quo by metes and bounds, that a defendant is entitled to a verdict, upon proof of title in him, to any close in the alleged parish or township: Stephen's Pl., 220-4; 1 Chitty's Pl., 503, 629; 2 Saund. Pl. and Ev., 636; 10 East, 80; 11 Id. 51.

In that case, the issue is formed on the plea and claim of title of the defendant, which the defendant sustains, under the old system of pleading, by proof of title in him to any close in the parish. In the other case, which is the case at bar, the issue is formed on the plaintiff's declaration and claim of title, and this the plaintiff sustains by proof of title in him to any close in the parish.

The plaintiff, under the present system of pleading, is entitled to meet by proofs at the trial any defense which might have been pleaded under the system of special pleading; and which must consequently now be brought forward by the defendant under a notice: 6 Mich. 514-15; 8 Id. 349, 351.

R. P. & J. B. Eldridge, and Wm. P. Wells, for defendants in error:

1. This action is trespass "quare clausum fregit," and is local. The gist of the action is the breaking and entering the close. The cutting and carrying off timber is, in the plaintiff's declaration, alleged as matter of aggravation: 1 Denio 181; 1 Comst. 515.

The declaration being general, neither naming nor describing the "locus in quo," under the plea that the close mentioned in the declaration was the close of the defendants, etc., it is not error to permit the defendants to show title to any land in the town of Erin; and by so doing, the defendants were entitled to judgment: 1 Chitty's Pl. (ed. 1855), 595; 1 Barn. & Cress., 489; 7 Durn. & East, 323; 2 Phillipp's Ev., 193; 8 Wend. 476, 503; 11 Id. 642; 12 Id. 207.

The evidence of ownership and possession by defendant Frederick Ray, of a portion of section 22 in the town of Erin, including the deed to him under which he claimed, was properly received.

The deed to Ray and his acts while in possession, together with his claim, explain that possession, and constitute the same "prima facie" evidence of his title to, and seizin of, the fee of said eighteen acres in section 22: 7 Wheat. 59; 8 Carr. & Payne, 536; 2 Hill 340; 2 Black. Com., 290.

Cooley, J. Campbell and Christiancy, JJ. concurred. Martin, Ch. J. did not sit.

OPINION

Cooley J.:

At the common law, where the defendant pleads liberum tenementum to a declaration in trespass quare clausum, if the declaration does not contain a particular description of the premises, the plaintiff is always liable to be defeated by the defendant showing title in himself to any parcel of land which would come within the general description given; that is to say, which lies within the township named. The declaration in the present case was of this general character, and the defendants had annexed to their plea of the general issue, a notice of title in Frederick Ray; thus presenting by the record the same issue, so far as this notice is concerned, which would be presented by the plea of liberum tenementum at the common law. The circuit court ruled, that under this notice the defense was established by proof of title in Frederick Ray to any parcel of land in the township; and the first error assigned is upon this ruling.

At the common law the plaintiff might avoid this result by new assignment; that is, by setting forth in his replication to the plea a description of his own premises by metes and bounds, or other particular description; and the issue taken upon this replication would confine the proof to the parcel of land thus described: 1 Chit. Pl., 606, and cases cited; Ellice v. Boyer, 8 Wend. 503. Our statute (Comp. L., § 4176, et seq.) abolishes special pleas, and requires the defendant, in order to avail himself of any...