Youngs v. Cunningham

• Decision Date: 03 June 1885
• Citation: 57 Mich. 153,23 N.W. 626
• Court: Michigan Supreme Court
• Parties: YOUNGS v. CUNNINGHAM and others.

23 N.W. 626

57 Mich. 153

YOUNGS v. CUNNINGHAM and others.

Supreme Court of Michigan

June 3, 1885

Error to Lenawee.

B.F Graves, for plaintiff and appellant.

Millard Weaver & Weaver, for defendants.

CHAMPLIN J.

Plaintiff brought ejectment to recover possession of 45 acres of land in the township of Ogden, Lawrence county, which he claims in fee. The defendants are the widow and children of George Cunningham, who died upon the premises in question on the twenty-second day of February, 1883. The premises were purchased by B.F. Cunningham, the father of George, from one Joel Skinner, in 1865, and the paper title remained in him until March 10, 1883, when he conveyed the property to the plaintiff in this suit. It is claimed by the defendants that they are entitled to hold the land as the widow and heirs at law of George Cunningham, and that he acquired title thereto by 15 years' adverse possession against B.F. Cunningham. The plaintiff claims that George Cunningham went into possession in 1867 or 1868, as the tenant of B.F. Cunningham, and so occupied to the time of his death, and that his possession was not adverse.

All the questions presented by the assignments of error arose upon the ruling of the court in the reception or rejection of evidence. The first and third assignments of error relate to the admission of testimony showing admissions made by B.F Cunningham while he held the legal title in disparagement of his title, while George was in possession of the premises and before plaintiff purchased. The testimony was admissible. Greenl.Ev. �� 181, 189. The second and fourth errors alleged relate to statements made by George Cunningham, the deceased in his life-time, while in possession, explaining the nature and character of his possession. The testimony was admissible for the purpose of showing the character of the possession, and that it was adverse. The intention with which possession is held constitutes the very essence of adverse possession, and the assertion of the occupant with reference to the nature of his possession is competent evidence to prove intent. Bower v. Earl, 18 Mich. 367.

The other assignments of error deserving of attention relate to the rejection of the testimony of B.F. Cunningham with respect to facts, if true, which were equally within the knowledge of George Cunningham, the deceased. The court held the witness incompetent to testify to such facts, for the...