Sparrow v. Hovey

• Decision Date: 16 June 1880
• Citation: 6 N.W. 93,44 Mich. 63
• Court: Michigan Supreme Court
• Parties: SPARROW v. HOVEY.

6 N.W. 93

44 Mich. 63

SPARROW v. HOVEY.

Supreme Court of Michigan

June 16, 1880

In ejectment, where the plaintiff claims title by adverse possession, it is proper to permit him to show that the land was generally called and spoken of as his in the neighborhood, as this tends to prove the notoriety of his claim of title. When title is claimed by an adverse possession for the statutory period, it should appear that the possession had been actual, continued, visible notorious, distinct and hostile. And where the circuit judge was requested so to instruct the jury and refused, but instructed them only that the possession must be actual continued and visible, held to be error. But a claim under a tax title is necessarily hostile to the owner of the original title.

Error to Shiawassee.

O.L Spaulding, for plaintiff in error.

Hugh McCurdy, for defendant in error.

COOLEY J.

This was an action of ejectment, and the defence relied upon was the statute of limitations.

1. Defendant having shown his possession for the requisite length of time, under tax titles which are now conceded to be invalid, was suffered to prove that the land was generally understood to be and called his, in the neighborhood. Exception was taken to this evidence, but we think it was competent. It tended to establish the notoriety of defendant's possession and claim of title, which were important facts in his defence.

2. The circuit judge was requested to instruct the jury that defendant, to complete his defence, must show that his possession for the requisite time was actual, continued, visible, notorious, distinct and hostile. The judge gave the instruction with the omission of the last three qualities, and refused to give it otherwise. Why he thus limited it does not appear, and we cannot surmise. The request was entirely proper, and should have been given. Yelverton v. Steele, 40 Mich. 538. It cannot be said that the instruction given covered the case, for a possession may be actual, continued and visible, without being either notorious or hostile, and no possession can be adverse, within the intent sf the statute of limitations, that lacks either of these qualities.

Where possession is held by claim or title under a tax deed, it is perhaps, of necessity, hostile to the title of the claimant under the original title; and as that was the nature of defendant's claim in this case we might overlook the dropping of the word "...