Schafer v. Hauser

• Decision Date: 18 February 1897
• Citation: 70 N.W. 136,111 Mich. 622
• Court: Michigan Supreme Court
• Parties: SCHAFER v. HAUSER ET AL.

70 N.W. 136

111 Mich. 622

SCHAFER v. HAUSER ET AL.

Supreme Court of Michigan

February 18, 1897

Error to circuit court, Wayne county; George S. Hosmer, Judge.

Ejectment by Nellie Schafer against Engelbert Hauser and others. From a judgment in favor of defendants, plaintiff brings error. Affirmed.

Henry M. Duffield, for appellant.

James H. Pound, for appellees.

MOORE J.

This is an action of ejectment, brought to recover the possession of certain lands which the plaintiff claimed to own. Bernard Stroh was the owner of these lands prior to 1870. In 1873 he made a mortgage upon these lands and other lands to Ervin Palmer, which matured in three years. This mortgage was foreclosed, and a sheriff's deed made upon foreclosure which deed was dated February 15, 1884. February 18, 1884 Ervin Palmer and wife deeded these lands to the Lion Brewing Company, which company deeded them to the plaintiff in the case, who is a daughter of Bernard Stroh deceased. The defendant is a brother-in-law of Bernard Stroh deceased, and had some business relations with him. It is the claim of the defendant that in 1870 Bernard Stroh gave him, by parol, the property in controversy, and put him in possession of it in 1870, and that he had been in the possession of it from that time until the commencement of this proceeding, claiming to be the owner of it. The case was tried by a jury, who found the claim of the defendant to be true, and returned a verdict in favor of the defendant. The plaintiff appeals.

The questions involved are purely law questions. It is the claim of the plaintiff that the possession of Hauser, under a parol promise to give him the property, could not be the foundation of any adverse possession; that Hauser would be only a tenant at will. It is also the claim that, under this parol promise Hauser was a privy of Stroh's, and that, as a privy of the mortgagor, he could not assert adverse possession against the mortgagee. We think the weight of authority is against these propositions. In 1 Am. & Eng. Enc. Law, 280, it is said: "Possession of land by a donee under a mere parol gift, accompanied with a claim of right, is an adverse holding as against the donor, which, if continued without interruption, is protected by the statute of limitations, and matures into a good title. That such a parol gift conveys no title, and only operates as a mere tenancy at will, capable of revocation or disaffirmance by the donor at any time before the bar is complete, is immaterial. It is the evidence of the beginning of an adverse possession by the donee, which can only be repelled by showing a subsequent recognition of the donor's superior title." This statement of the law is fully supported by Campbell v. Braden, 96 Pa. St. 388; Stewart v. Duffy, 116 Ill. 47, 6 N.E. 424; Bartlett v. Secor, 56 Wis. 520, 14 N.W. 714; Clark v. Gilbert, 39 Conn. 94; Collins v. Johnson, 57 Ala. 304; Vandiveer v. Stickney, 75 Ala. 225. Justice Shaw states the law to be: "A grant, sale, or gift of land by parol is void by the statute, but, when accompanied by an actual entry and possession, it manifests the intent of the donee to enter and take as owner, and not as tenant; and it equally proves an admission on the part of the donor that the possession is so taken. Such a possession is adverse. It would be the same if the grantee should enter under a deed not executed conformably to the statute, but which the parties, by mistake, believe good. The possession of such grantee, or donee cannot, in strictness, be said to be held in subordination to the title of the legal owner; but the possession is taken by the donee as owner, and because he claims to be the owner; and the grantor or donor admits that he is owner, and yields the possession because he is owner. He may reclaim and reassert his title, because he...