text:
    GAGE v. SANBORN.

    1. Summary Proceedings — Land Sold Under Mortgage — Sufficiency of Complaint.
    In summary proceedings under 2 How. Stat. £§ 8295, 8296, to recover the possession of land sold on mortgage foreclosure, and held after the time for redemption has expired, a complaint alleging that defendant is in possession of the premises therein set forth, and holds the same unlawfully and against the rights of complainant, who is lawfully entitled to the possession of the same, is sufficient.

      2. Same — Validity of Foreclosure — Jurisdiction.
    The questions of the validity of the foreclosure, and whether the premises had been redeemed, may be tried in such proceeding. Such a case is not within the rule that conflicting titles to realty cannot be thus litigated.
    S. Same — Notice to Quit.
    Where the proceeding is begun promptly after the expiration of the time for redemption, the defendant is not entitled to three months’ notice to quit.
    4. Banks — Foreclosure of Mortgage by Advertisement.
    Under 1 How. Stat. § 3142, 3 How. Stat. § 32086, providing that it shall be lawful for banks to purchase, hold, and convey real estate mortgaged to them in good faith, and such as they shall purchase at sales under judgments, decrees, or mortgage foreclosures under securities held by them, a bank can foreclose a mortgage by advertisement.
    5. Same — Authenticity of Notice of Sale — Evidence.
    If the authenticity of a notice of sale under proceedings to foreclose a mortgage by advertisement in the name of a bank can be questioned at all, the fact that the foreclosure was authorized by the directors may be shown by parol.
    3. Mortgage — Statutory Foreclosure — Sale in Parcels.
    One who attacks the validity of a foreclosure sale on the ground that the lands were sold as one parcel has the burden of proving that they were not so occupied, unless that fact is apparent from the description in the mortgage.
    7. Same — Sale to Mortgagee — Excessive Demand.
    A sale to a mortgagee upon statutory foreclosure for an amount in excess of that legally demandable, but claimed by him to be due, is not invalid, in the absence of proof that the surplus was not paid to the officer.
    8. Mortgage — Assignment Pending Foreclosure.
    The assignment of a mortgage after a sale has been made on statutory foreclosure, though before the period for redemption has expired, will not operate to annul the proceedings. Niles v. Hansford, 1 Mich, 338, distinguished.
    9. Mortgage Foreclosure — Title of Purchaser — Quitclaim.
    A purchaser of land at a sale on mortgage foreclosure acquires an equitable interest in the premises, which he- may convey by quitclaim deed prior to the expiration of the redemption period, and which, when so conveyed, will ripen into a legal title in his grantee, if the land is not redeemed.
    10. Same — Duty to Pay Mortgage — Redemption.
    A legal title acquired by virtue of a foreclosure sale cannot be attacked in an action at law on the ground that the party claiming thereunder acted as agent for one whose duty it was to pay the mortgage, and that, therefore, the transaction amounted merely to a redemption.

      11. Mortgage — Absolute Conveyance as Security — Assuming Prior Iscumbrance.
    The fact that, in a deed executed as security only, the grantee assumes and agrees to pay a prior mortgage, will not necessarily preclude him from acquiring title under a sale on foreclosure of such mortgage.
    Error to Saginaw; Wilber, J.
    Submitted June 7, 1895.
    Decided July 13, 1895.
    Summary proceedings before a circuit court commissioner by William G. Gage against Florence A. Sanborn to obtain possession of certain premises. Defendant prevailed before tlie commissioner, and plaintiff appealed to the circuit court. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      L. T. Durand and G. W. Davis, for appellant.

      William G. Gage and Camp & Brooks, for appellee;

       Rehearing denied October 1, 1895.

   Hooker, J.

The defendant being in possession of certain premises, described as lots 8 and 10, and the north half of lots 2 and 11, of block 70, except two rooms on the second floor of the house thereon (which rooms were occupied by Marriette C. Sanborn), summary proceedings were begun by the plaintiff to obtain possession of the same. From a judgment in his favor, the defendant has appealed.

The record shows that the defendant’s husband, Lewis D. Sanborn, being at the time the owner of the entire premises, executed, a mortgage thereon for $5,000, in which the defendant joined, and delivered the same to the Savings Bank of East Saginaw, as collateral to two notes given said bank by said Lewis D. Sanborn. Said mortgage contained the usual power of sale, was executed on January 9, 1890, and was recorded the following day. On December 3, 1890, Sanborn and the defendant joined in a warranty deed of the premises to Sanborn’s mother, Marriette O. Sanborn, subject to the mortgage mentioned, said deed containing the following prolusion, viz., “which said mortgage said second party assumes and agrees to pay.” The consideration expressed in the deed was $6,000. Sanborn thereafter abandoned his wife, leaving her upon the premises, a portion of which was their homestead. Two or more other buildings stood upon the half lots. Litigation between Marriette and Florence A. San-born followed, and this court held that the instrument given to the former was by way of security, and, therefore, a mortgage. The opinion of the court will be found reported in 10-4 Mich. ISO. Meantime Marriette C. San-born had paid $3,000 upon the mortgage of the bank, previous to January 11,1893, at which time she informed (he officials of the bank that she would pay no more upon (he mortgage. This was communicated to the bank by (lie plaintiff, who said that the bank could foreclose if it wanted to. This it did, by advertisement, and at the sale bid in the premises, — the half lots, 2 and 11, with the two buildings thereon, described in the notice of sale as “Parcel 1,” being sold first, for $687.52; and the remainder of the premises described, called “Parcel 2,” upon which defendant Lived, being sold for $2,500. The sheriff’s deed was dated August 5, 1893. July 31, 1894, the bank executed an assignment of its interest in the mortgage, and a quitclaim deed of its interest in the premises, to the plaintiff, who instituted these proceedings to obtain possession, on August 9,1894.

The point is made that the complaint is insufficient. In substance, it alleges that the defendant is in possession of the premises therein named, and holds the same unlawfully and against the rights of complainant, who is alleged to be lawfully entitled to the possession of the same. Under the decisions in the cases of Caswell v. Ward, 2 Doug. (Mich.) 374, and Bush v. Dunham, 4 Mich. 344, there might be room for this contention ; but counsel have apparently overlooked the later cases of Bryan v. Smith, 10 Mich. 229, and Moody v. Seaman, 46 Mich. 76, which hold such a complaint sufficient.

We next consider the validity of the foreclosure proceedings :

The ¡power of sale: It is said that the bank is a corporation of limited powers, and could not foreclose the mortgage by advertisement. No question is raised over the right of the bank to own this mortgage; and, if it may, it must have the power to foreclose it by advertisement, if it can be so foreclosed while it is such .owner. Counsel concede that some of the courts hold that “ a corporation may execute such trusts as are coupled with an interest in the thing granted, or upon which the power is •to operate,” but say that “it is fundamental that they cannot execute a power not coupled with an interest •in that upon which the power is to operarte.” And they argue, upon the authority of Johnson v. Johnson, 27 S. C. 309, that “a mortgagee’s interest in the property mortgaged is only in the proceeds of the property mortgaged, and it would not therefore be coupled with any interest in the equity of redemption, to which the contract or power of sale relates.” But, if this can be said to be true in this State (see Lee v. Clary, 38 Mich. 226, and Niles v. Ransford, 1 Mich. 338), we think the statute confers the power upon banks to foreclose by advertisement.

1 How. Stat. § 3142, provides that—

“It shall be lawful for any such association to purchase, hold, and convey real estate for the following purposes: * * *
“2. Such as shall be mortgaged tb -it in good faith, by way of security, for loans previously made by, or moneys due to, such association. * * *
“4. Such as it shall purchase at sales under judgments, decrees, or mortgages held by such association,” etc.

Again, 3 How. Stat. § 32085, provides that—

“A bank may purchase, hol'd, and convey real estate for the following purposes, but no other: * * *
“3. Such as it shall purchase at sale under judgments, decrees, or mortgage foreclosures under securities held by it; hut a hank shall not bid at any such sale a larger amount than to satisfy its debt and costs.”

Counsel for plaintiff forcibly suggest that the words “mortgage foreclosures” are unnecessary, and can be given no effect, if banks cannot foreclose by advertisement, as purchases at mortgage sales in other cases would be covered by the word “decrees.”

Signature of the notice of sale: Objections are made to the validity of the sale for the alleged reasons: (1) That the notice was not signed by the mortgagee; (2) that it does not appear that the directors of the bank authorized the foreclosure. To the notice as published was affixed the name of the bank, also the name of the attorney. The evidence showed that thiis was done by the consent and authority of the directors, and the bank availed itself of the advantages arising from, and the results of, the sale. We are not cited to authority for the proposition that all .the details of every-day business in banks must be considered in directors’ meeting, and theur action be spread upon the journal of the meeting. Such a practice would complicate the business of banking, and be at variance with the ordinary course of business as it is commonly done. To go further, and allow a debtor to question the regularity of proceedings on the part of the bank in such cases, would have little reason to support it. The notice was over the name of the bank, and informed the public of the prospective sale. It contained the statutory requisites of a valid notice; and, if its authenticity could be questioned, there is no reason why it should not be vindicated by parol testimony, the same as though the notice were that of a private person who had authorized an attorney to foreclose a mortgage. Unreasonable restrictions and intendments against statutory foreclosures should not be favored. Lee v. Clary, 38 Mich. 229.

Sale in panels: It is next contended that the sale is invalid because the half lots included in “Parcel 1” were sold together. The mortgage described the premises as lots 3 and 10 and the north half of lots 2 and 11. From this description it does not appear that the land is not adjoining and used as one parcel. If so,' it was proper to sell as one. Larzelere v. Starkweather, 38 Mich. 104; Durm v. Fish, 46 Mich. 314. The cases cited by counsel for defendant are not at variance with this rule. If they were not adjoining, it devolved upon the defendant to prove it. Harris v. Creveling, 80 Mich. 252. But it was conceded that they were used as two, and the sale was made accordingly.

Excessive hid: It is said that the amount claimed to be due by the bank was excessive. The amount is not stated, but seems to have been the cost of one insertion of the notice of sale, which was published 13 times, the last being unnecessary. Gantz v. Toles, 40 Mich. 725; Bacon v. Kennedy, 56 Mich. 329. In a case where the mortgagee bid an excessive amount, which was claimed to be due, and failed to pay it over to the sheriff making the sale, the mortgagor was permitted to redeem on payment of the amount of the bid less the excess. Louder v. Burch, 47 Mich. 109. There is, 'however, no presumption that the sum bid was not paid over, and we are cited to no proof upon the subject. Millard v. Truax, 47 Mich. 251.

Having reached the conclusion that the foreclosure proceedings were valid, we will next inquire whether the purchase ripened into a title in plaintiff. This depends upon two questions: (1) Did the assignment of the mortgage operate to annul the foreclosure? (2) Were the quitclaim deed and the assignment adequate to convey a title, redemption not having expired at the time of their delivery? In Niles v. Hansford, 1 Mich. 338, it was held that a transfer of a mortgage pending the advertisement of a notice of sale put an end to the proceeding. But, after the sale is made, we discover no reason for holding that it would have such effect. Nor are we impressed by the claim that such assignment and quitclaim deed were ineffective to pass the interest of the bank. The bank had an equitable interest in this land as purchaser. If it had no interest, and had given a warranty deed, it would be sufficient to pass after-acquired title. It is said tlial “the bank’s interest at that date was but the interest of a mortgagee, and it had no title upon which the* quitclaim deed could have operated.” Counsel add that this seems to be the general doctrine of the' courts, but they cite only Minnesota cases to sustain the proposition. The purchaser at the sale pays his money, and acquires an equitable title to the land, which time will ripen into a legal title, subject only to- the' equitable right of redemption. That is assuredly an equitable interest in land, and such may be conveyed by quitclaim deed. Tha*t an equitable title may be so conveyed is recognized in Frost v. Missionary Society, 56 Mich. 69; Thayer v. McGee, 20 Mich. 195. The cases from Minnesota do not go far towards sustaining the defendant’s contention. The case of Donnelly v. Simonton, 7 Minn. 167, holds that a mortgage of real estate is not a. conveyance of the legal title, which — i. e., the legal title —only vests after expiration of the period for redemption; the case of Horton v. Maffitt, 14 Minn. 289, holds explicitly that a mortgagee, even before foreclosure, has an equitable estate or interest, which is subject to defeat by redemption; while Loy v. Insurance Co., 24 Minn. 315, lays down the rule that a purchase at foreclosure sale is not such a change in title as to invalidate an insurance policy, when redemption had not expired. None of these oases assert that the purchaser at the sale acquires no interest in the land; and, while assignment before sale invalidates the pending proceedings to foreclose by advertisement, the reason is that the power and the interest cannot be separated. After the sale has been made, and the sheriff’s deed made and filed, the power has been exercised, and ceases. The purchaser’s equitable interest has accrued, and he may deal with it as with any other equitable interest. Jones, Mortg. § 1832; Niles v. Ransford, supra.

The litigation between Sanborn’s wife and mother, already alluded to, was upon a bill filed by the wife to set aside the deed to the mother. This deed was held to be an equitable mortgage, and the cause was returned to the circuit for an accounting, it being determined that the amount paid by Marriette, the mother, upon the bank mortgage, should be included in her claim against the property. A year was allowed the complainant for redemption. Upon the trial of the present case before the circuit court, the defendant, Florence A. Sanborn, asserted and attempted to show that the consideration for the quitclaim deed from the bank to the plaintiff was paid by or for the benefit of Marriette C. Sanborn, his client. Several questions were asked which, if answered, might have brought out the fact, but the court did nor permit it. If this testimony was admissible, it was upon the theory that the purchase of the bank’s interest amounted to a redemption by Marriette C. Sanborn, who had accepted a deed — i. e., an equitable mortgage — in which it was provided that she should pay this bank mortgage, and that, it being a duty owed to the mortgagor, she could not evade it by claiming title through foreclosure. Had the deed to Marriette not been questioned, a court of equity would have held Marriette primarily liable for a deficiency, in case of foreclosure of the bank mortgage, as between herself and son, Lewis L>. Sanborn; but this would not prevent the purchaser at the sale from acquiring a valid title, whether the foreclosure was in chancery or by advertisement. Had this plaintiff purchased these premises and received a deed upon foreclosure, the only remedy available to the defendant would be a bill to redeem or to set aside the deed, if it was the mother’s duty to pay the mortgage, upon the ground of a fraudulent purchase by Marriette C. Sanborn, through her agent, Gage. She could not question, the legal title conveyed by the deed in an action at law, like ejectment or summary proceedings. A court of equity only could declare this purchase from the bank a redemption. Furthermore, the construction given to the deed to Marriette G. Sanborn is hardly consistent with the defendant’s theory that redemption of this mortgage was. a part of the consideration for her deed from Lewis 1). Sanborn. The opinion expressly states that all payments made upon this mortgage by her should be a lien upon the land, and should be made a part of an accounting, with a view to redemption by this defendant, and it indicated no duty on the part of Marriette C. Sanborn to pay the remainder upon the mortgage; and, if it was not, she was. at liberty to purchase the foreclosure title. All of these questions are important as bearing upon the right of defendant to redeem, but they have no bearing upon the legal title, which vested by the foreclosure deed, subject, of course, to the power of a court of equity to' set the same aside or permit redemption in a proper case.

The defendant’s contention is, in substance, (1) that the foreclosure proceedings were defective for the reasons stated; (2) that the plaintiff acquired no title because of a redemption. We have discussed both propositions, but the further claim is made that these claims raise a question of title, which cannot be tried in this proceeding. It is true that questions of title cannot be tried in summary proceedings; 'and, when it appears that the decision must turn upon a question of adverse title, the case must be dismissed. Butler v. Bertrand, 97 Mich. 59, and oases cited. Rut this must be understood to mean a question of legal title, and it must be raised by the evidence offered in the case. If this were otherwise, a mortgagor could always defeat summary proceedings by denying the validity of the foreclosure or asserting that the premises had been redeemed. Again, this proceeding is brought under a statute which authorizes it “when any person shall continue in possession of any premises sold by virtue of any mortgage or execution, after the expiration of the time limited by law for redemption.” The questions to be tried before the commissioner under 'this statute in a foreclosure case are: (1) The fact of the mortgage sale and its validity; (2) the holding over after expiration of the period of redemption. If these questions cannot be tried by the commissioner the statute is farcical, as jurisdiction would always be lost as soon as a plausible claim of invalidity of the sale should be raised. Hence a mortgagor is permitted to question the validity of the sale in this proceeding, and the same would be true in cases of execution sales. The proceeding lies against the person in possession holding under the equity of redemption,and it will not lie against one holding under a paramount or adverse title. Brown v. Martin, 49 Mich. 565. In the cases of Riggs v. Sterling, 51 Mich. 157, and Mulder v. Corlett, 54 Mich. 80, where it was held that the commissioner had not jurisdiction, the defendants claimed homestead rights, in opposition to, and as paramount to, the title derived from sheriff’s sales on execution against the defendants. These cases do not attack the regularity of the proceedings themselves, but raise a question dependent upon extrinsic facts, constituting a legal defense in a proper tribunal, viz., an adverse claim of a title paramount to the levy; at least, this seems to have been the view taken in Riggs v. Sterling, and this distinction is intensified by the dissenting opinion of Mr. Justice Cooley in that case.

The further point is made that the defendant was entitled to a three months’ notice to quit under the statute. The proceedings were begun promptly after redemption expired, and there is no room for the claim that plaintiff assented to continued occupancy, if that would make any difference. We think defendant was not entitled to notice. Allen v. Carpenter, 15 Mich. 25.

We think this covers the important questions raised, and our conclusion is that the judgment must be affirmed. Ordered accordingly.

The other Justices concurred.

        Lee v. Mason, 10 Mich. 403; Keyes v. Sherwood, 71 Mich. 516.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    McGUIRE v. VAUGHAN.
    1. Libel — Justification—Pleading—Evidence.
    In an action for libel in charging plaintiff with having committed an assault with intent to do great bodily harm, less than the crime of murder, the specific averment being that plaintiff had seized a pitchfork and thrust it into the thigh of a certain person, evidence that plaintiff ran the fork through the person’s clothing, but that it did not penetrate his thigh, is admissible under a special notice of justification setting up the facts.
    2. Same — Harmless Variance.
    Where the defendant in an action for libel, under a special notice of justification, has proved the truth of the charge that plaintiff was guilty of a criminal offense, which constituted the gist of the publication sued upon, the fact that the article averred that plaintiff had been held for trial for such offense, when in fact he had been held for examination only, becomes immaterial.
    3. Record on Appeal — Instructions—Assignments or Error.
    Where an instruction to the jury, as contained in the record, includes words that render it manifestly erroneous, but such words are omitted from the instruction as embodied in the assignment of error, the charge will be presumed to have been correctly given.
    Error to Clinton; Daboll, J.
    Submitted June 5, 1895.
    Decided July 13, 1895.

      Case by Eugene McGuire against Coleman O. Vaughan for libel. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Patterson & Flynn, for appellant.

      Will S. Brunson and Fedewa & Walbridge, for appellee.
   Long, J.

This action is brought to recover damages for the publication of the following article, which is claimed to be libelous:

“Eugene McGuire, who, but a few months ago, was telling the people of this county how to live, and who was officious in the conventions of the Populists as a leader, has come to grief at his home near Bath. The Lansing Journal has the following in his case: ‘Some months ago, McGuire entered into an agreement to work a farm near Bath village for a certain Lansing gentleman. In accordance with a time-honored custom, McGuire had plenty of trouble with his landlord, and the latter had been frequently sick of his contract. A day or two ago, it is alleged, the landlord sent a man to the farm for some cattle. The tenant refused to give up the animals, and an altercation ensued, in which McGuire, it is charged, finally seized a pitchfork, and ran it into the thigh of the man who wanted the cattle. It is claimed that he was in a great rage, and sent his daughter into his house after a revolver, threatening to kill somebody when he got it. Other parties interfered, and took the revolver away. McGuire was then arrested on a warrant charging him with an assault with intent to do great bodily harm, less than murder. He was taken before a justice of the peace, and held for trial. Not giving bail, he was taken to St. Johns., and lodged in the county jail.’ ”

Plaintiff alleges in his declaration that he has been greatly injured by such publication by the defendant in his newspaper, the Clinton Republican, the defendant meaning by such publication to charge that the plaintiff committed the crime of an assault with intent to do great bodily harm, less than the crime of murder, and meaning and intending by such publication to charge that plaintiff had committed a felony; also meaning that plaintiff was a difficult man to do business with, and a dishonest man; also meaning to charge that said plaintiff intended to commit the crime of murder; also meaning to charge that the plaintiff was a disturber of the public peace, and that to preserve the public order it was. necessary to disarm him; and also to charge that the plaintiff was taken before a justice of the peace, and held for trial in the circuit court on the charge of having aommdtted an assault with intent to do great bodily harm, less than the crime of murder, and that the plaintiff was unable to find bail, and was confined as a prisoner in the county jail of Clinton county.

To this declaration the defendant pleaded the general issue, and gave notice of justification and of facts in mitigation, to show want of knowledge, and that the article did not mean what the innuendoes in the declaration alleged. The printing of the article in the Clinton Republican, and its publication by defendant, are not denied. The defense is that the article was true. The defendant, at the time of the publication of the article, was in the State of New York, and knew nothing of the matter personally, and had no acquaintance with the plaintiff. The article was taken from the Lansing Journal, and credited to that paper in the publication. It had also been published in the Ingham County Democrat and the Ingham County News.

It is conceded on the part of the defendant that the article is libelous per se, but it is claimed that the jury found the article to be true, or, at least, found, under the charge of the court, that the plaintiff was guilty of the several acts of misconduct imputed to him in the article. The notice under the plea sets forth that—

“This defendant will further prove that on or about the 1st day of August, 1898, one A. C. Crosby held a valid chattel mortgage upon the cattle located upon the farm aforesaid, which chattel mortgage was executed by David R. Corey; that in consequence of the abuse and misuse of said cattle by the said McGuire, as claimed by the said Corey, which fact came to the knowledge of said Crosby, it was arranged between the said mortgagor and mortgagee that some- one should be sent for said cattle, and remove them' from said farm by virtue of the terms of said mortgage; that, in pursuance of said arrangement and understanding, one G. J. McClintock was sent to the farm aforesaid, with the mortgage aforesaid, for the purpose of getting the cattle; that when the said Mc-Clintock reached the said farm in question, and saw the said plaintiff, Eugene McGuire, the said McClintock informed the said McGuire that he had come for the cattle, and that he proposed to take them by virtue of the mortgage which he held in his hand, and which he presented to said Eugene McGuire; that the said Eugene McGuire thereupon refused to give up the cattle, and seized a pitchfork, and threatened to run it through the said Mc-Clintock if he went another step; that, at the time of said threat, he was advancing upon the said McClintock with pitchfork in hand, and ran the tines of said pitchfork into the trousers of the said McClintock, over the abdomen, tearing a hole in his said trousers, and the said McClintock was obliged to grab hold of said pitchfork, and use all the force and power he possessed, to prevent the said McGuire from running the said pitchfork into him; that the said McGuire became greatly enraged, and sent his daughter into the house after a revolver; that at the time of sending for said revolver the said McGuire’s acts, words, and conduct put the said McClintock, and others who were present with him, in great fear of their lives, and the said McGuire threatened to kill some one when he got it; that upon this occasion the said McGuire also threatened and attempted to use said pitchfork upon a man by the name of Secord, who was there with Mr. McClintock; that the revolver was taken away from his daughter by some one who went with said Mc-Clintock after the cattle, before she gave the same to her father; that after said altercation above set forth, upon the complaint of said G. J. McClintock, the said Eugene McGuire was arrested with a warrant charging him with assault upon the said McClintock with intent to do great bodily harm, less than murder; that said Eugene McGuire was then taken before a justice of the peace in and for the county of Clinton, and held for examination, and, not giving bail, the said McGuire, by order of the.court, was placed in the custody of the sheriff! in and for the •county of Clinton, and the said, sheriff took the said McGuire in custody to St. Johns, and lodged him in the county jail.
“This defendant will further prove that the popular -acceptation of the words ‘held for trial,’ in connection with which they are used in the latter part of said article, is ‘held for examination,’ and that he will prove that the «aid words were so understood by various people who read the article in question, and that he will prove that such is the fair meaning of said words.
“All of which facts set forth in this notice will be •offered in proof, on the trial of this cause, in mitigation and justification of the article claimed to have been published by this defendant.”

Defendant gave testimony tending to show that all the facts set up in the notice under the plea were true. The court excluded the testimony offered to show the meaning of the words “held for trial.”

At the close of the testimony the plaintiff requested the court to charge the jury as follows:

“2. The article published charges that McGuire ‘seized a pitchfork, and ran it into the thigh of the man who wanted the cattle.’ This charge is libelous, and there is no proof in the case that it was true; and, for its publication, plaintiff must recover.”
“i. The plaintiff claims that the word's, ‘McGuire was then arrested on a warrant charging him with an assault with intent to do great bodily harm, less than murder. He was taken before a justice of the peace, and held for trial,’ — mean that he was held for trial on said charge in the circuit court after an examination before a justice of the peace. This, I charge you, must be taken to be the true meaning of these words.”
“18. The sting of this article is the imputation of •crime; and it is for you, gentlemen of the jury, to say to what extent facts were poisoned by fiction, and 'whether the publication, by misrepresenting the incidents of the charges imputed to plaintiff in the libelous article, and by misstating the conduct and appearance of the parties, and the circumstances attending his arrest, has not given to the grains of truth a color and weight which otherwise they would not possess. You have the evidence before you, and you have a right to consider it in all its parts, and determine what parts, if any, of the libelous article, have been justified, and what parts have not; and, in doing so, you give to each part such meaning as would be accepted among people generally under like circumstances.”

These requests were refused, and the court charged the jury, substantially, that the'article was libelous per se,. and, unless the defendant-proved by a preponderance of evidence that all the things therein charged against the plaintiff were true, their verdict must be for the plaintiff, and, if only part of the article was proved to be true, the plaintiff would still be entitled to recover. The court further stated to the jury, in substance, that if the article meant to charge that the plaintiff made an assault with intent to do great bodily harm, less than the crime of murder, and the jury found that he did commit an assault upon McClintock with intent to do great bodily haim, less than the crime of murder, the justification, as to that, would be complete, though the plaintiff was discharged on the examination before the magistrate. The-court also left it to the jury to determine the meaning of the words “held for trial,” with the direction that, if they found the words meant held for examination before the magistrate, the truth of the words was established. The jury returned a verdict in favor of the defendant.

The contention of the plaintiff is that the court was. in error in permitting counsel for defendant to state to' the jury that he would prove that the plaintiff advanced on McClintock with the pitchfork, and it penetrated his, pants, but did not penetrate his person, and he did not run the fork into McClintock’s thigh. Plaintiff’s claim is that the notice did not state the facts of the transaction as set forth in the published article, and that the proofs stated in the notice would not show the truth of the article sued upon; that his offer must be to prove the truth of his statements precisely as charged in the declarration; and that no such offer was made. The notice was very specific. It was not a general and sweeping notice-of justification of all matters complained of, but was specific as to each charge m'ade by the innuendoes. The general charge in the article, and the whole gist of it, however, was that the plaintiff had been guilty of an assault upon McClintock, with intent to do great bodily harm, less than the crime of murder. This charge was sought to be justified by showing its truth. While the article •stated that the pitchfork was run into the thigh of Mc-Clintock, the notice only claimed, and the proof tended only to show, that the fork was run through the pants, and not into the thigh. The other facts, however, as developed on the trial, showed that the jury believed that the plaintiff was guilty of the offense charged, though the fork did not penetrate McClintock’s thigh. We are satisfied that there were proofs from which the jury might find that the plaintiff was guilty as charged in the article. The substance of the article is set up in the notice, and the statement in it that the fork was run into .and through McClintock’s pants, instead of his thigh, would not necessarily add to or lessen the degree of the crime which was imputed to him in the article. The gist -of the charge was the commission of a certain and specific offense, and of which the jury in the present case must have believed him guilty. But, aside from this, the plaintiff, by his innuendoes, says that he is charged with the «rime which the defendant in his notice says he will prove to be true. It is necessary that the evidence should correspond with the allegations, so as to identify the special slander set up. Evarts v. Smith, 19 Mich. 55. But it is not necessary to prove the exact words. Irish Am. Bank v. Bader, 59 Minn. 329. In Hay v. Reid, 85 Mich. 296, this court held that a charge that the marshal permitted gambling to be carried on before his very eyes was justified by proof that he knew that gambling was going on in a certain room in a building while he was in the same building, and knew where the room was located. See, also, Morrison v. Harmer, 3 Bing. N. C. 759; Edwards v. Knapp, 97 Mo. 432.

It is claimed that it was the duty of the court to

instruct the jury that the words “held for trial” meant held for trial in the circuit court, and not held for examination. If the court was in error in this respect, the plaintiff is in no position to complain of the ruling. The gist of the charge, as we have already stated, was whether plaintiff was guilty of the offense set out in the article. Upon a fair charge upon the merits of that question, the jury have substantially found that the plaintiff was guilty. Under these circumstances, he could not have been prejudiced by the ruling. It could not matter whether he was held by the justice for examination, or bound over for trial. The gist of the action was the crime charged, and of this portion of the charge it was that he was in custody to answer to the charge. Bailey v. Kalamazoo Publishing do., 40 Mich. 255.

One other question only need be noticed. The record returned into this court shows that the court charged the jury that—

“It is the duty of a newspaper to gather up their news, and in so doing they are compelled to depend upon information that comes to them. If they act honestly and fairly as to the sources of the reliability of their information, then they are excused, so far as malice and exemplary damages, or any damages, are concerned, if they publish a false thing, and they do it with a good intention.”

It is contended that the court was in error in including in this statement the words “any damages.” If the court used the words in the connection set.forth, it .was clearly error; but the plaintiff, in his assignment of error,, quotes the whole of that part of the charge above given, except the very words of which he complains, — that is, he leaves out of his assignment of error the words “any damages.” The charge, with these words eliminated, is not erroneous, and the question is not raised under the assignment of error. From the whole charge, and the assignment of error leaving out the words “any damages,” we are inclined to think that by some oversight the words are put into the record, and were not in the charge as given to the jury- Certainly, the error would have been too- patent to escape notice, and assignment of error upon it.

The case seems to have been fairly tried, and the charge to the jury fully set out the claims of the respective parties with great clearness and fairness. While we have not discussed all the claims made, we have given them consideration, and find no errors which call for reversal.

The judgment must be affirmed.

The other Justices concurred.


author: McGrath, C. J.

text:
    SCOTT v. CRUMP.
    Officers — Right to Salary — Conflicting Claims — Payment.
    Payment of a fixed salary to a de facto officer while he is holding the office and discharging its duties constitutes a complete defense to an action brought by the officer de juref after judgment of ouster, to recover the salary for the same period; and, in case of an elective city pffice, it makes no difference (1) that the members of the common council were eco oficio members of the board of canvassers, and as such issued to the incumbent a certificate of election, no fraud or misconduct being imputed to them; (2) that the council assumed the defense of the quo warranto proceeding instituted by the claimant; or (3) that certain charter provisions were not observed in making the payments. But payments made after judgment of ouster has been rendered are unwarranted, and the municipality is liable to the officer de jure for the amount, of the same.

      Certiorari to Bay; Maxwell, J.
    Submitted June 4, 1895.
    Decided July 13, 1895.

      Mandamus by James A. Scott to compel Rosseau O. Crump and others, constituting the mayor, common council, and recorder of West Bay City, to issue an order for the payment of relator’s salary as comptroller. From an order granting the writ, respondents bring certiorwi'i.

    Judgment modified and affirmed.

      Hatch & Cooley, T. A. M & J. C. Weadock, and James F. Duffy, for relator.

      G. H. Francis (T. F. Shepard, of counsel), for respondents.
   McGrath, C. J.

At the charter election in West Bay City held April 3, 1893, James A. Scott, relator, was a candidate for comptroller. The returns of the election inspectors gave him 14 votes over Charles Glaser, the opposing candidate. Mr. Glaser filed a petition for a recount, which was had, and Glaser was declared elected, and was inducted into the office in April, 1893, and performed the duties of that office until January 11, 1895. Quo warranto proceedings were instituted July 11, 1893, which ultimated in a judgment of ouster, in favor of Scott, January 8, 1895. The city paid the salary to Glaser while he occupied the office, and this is a proceeding to compel payment to relator of the salary for the period during which he was excluded from the office.

It was held in Board of Auditors v. Benoit, 20 Mich. 176, after very full consideration, that payment of a fixed salary to a de facto officer while he is holding the office and discharging its duties is a complete answer to an action brought after a judgment of ouster. Counsel for relator, however, insist that the city was notified of relator’s claim of right to the office and of the proposed contest, and that any payments to the incumbent would be at the city’s peril; that the council must be presumed to have known that the rejected ballots were legal ballots, and that Glaser was not in office under color of title; that in the present case the authority by virtue of which Glaser was inducted into office proceeded from the council; and that the council was a party to the usurpation.

Counsel are in error in assuming that Glaser could not have compelled payment of the salary pending the quo warranto proceeding, and that the council was in a situation to withhold payment. The Benoit case was expressly put upon the ground that the title to the office could not he tried in a proceeding to compel the payment of the salary. That question could only be tried in the quo warranto proceeding, and until its determination there was no answer to Glaser’s claim for the salary. Glaser was not an intruder or usurper, in the sense that the payment of his salary could have been refused. He held the certificate of election granted by the board of canvassers. It matters not that the members of the common council were ex officio members of the canvassing board. They did riot act as a common council in the canvass, but as a board of election canvassers. The common council, acting as such, had no authority in the premises, and could not have afterwards determined the question involved. Glaser could not have settled the question by consenting to withdraw in favor of relator. That issue could be determined in but one forum, and in a proceeding to which the people of the State were made parties. Fraud is not 'charged, nor can an inference of fraud or improper conduct be predicated, upon the action of the board of canvassers. The determination which they made was reviewed by this court, and, after a hearing and a rehearing, it was finally held that relator was elected by a majority of one. Attorney General v. Glaser, 102 Mich. 405. Conceding that the council, in undertaking the defense to the quo warranto proceeding, acted improperly, the municipality is not thereby estopped. Their action did not enter into that controversy, nor did they interpose any obstacle to the determination of the question at issue. In Stadler v. City of Detroit, 13 Mich. 346, Mahaney’s appointment was without authority of law. It had been made by the council. Stadler had not been removed or ousted. The council had the power of removal, and it had not exercised it in either case. Mahaney’s right to the salary depended upon the validity of that appointment.

It is insisted, however, that the salary was paid to Glaser without the proper action bf the council thereupon, under the charter of the city; but it has nevertheless been paid, and Glaser was entitled to its payment at the time made. The salary paid to an officer, to which he was entitled when paid, could not be recovered back simply because certain provisions of the charter had not been observed in making the payment.

It appears, however, that the last payment to' Glaser was made after the judgment of ouster had been rendered. Such payment was unwarranted. Comstock v. City of Grand Rapids, 40 Mich. 397; McVeany v. Mayor, etc., of New York, 80 N. Y. 185; Dolan v. Mayor, etc., of New York, 68 N. Y. 274.

The judgment will be affirmed with respect to the amount of the last payment so made, and a mandamus will issue directing the payment over to relator of such amount. In other respects the determination of the court below is reversed. No costs will be awarded.

The other Justices concurred.


text:
    WIESINGER v. FIRST NATIONAL BANK OF BENTON HARBOR.
    1. Promissory Note — Maturity—Days Of Grace.
    An action commenced upon a promissory note on the last day of grace is premature.
    3. Malicious Prosecution of Attachment — Probable Cause—
    Advice of Counsel — Debt not Due.
    In an action for the malicious prosecution of an attachment, proof that defendant placed all of the facts before his counsel, and acted upon his opinion, will establish probable cause; but where it appears that part of the indebtedness alleged in the affidavit for the writ to be due and payable consisted of a note which, to the knowledge of the defendant, was not then due, and that defendant did not consult his counsel as to his right to include the same, it is error to direct a verdict for defendant.
    3. Estoppel-Statements in Pleadings.
    Where the declaration in an action for maliciously suing out a writ of attachment alleges that “ the defendant caused the affidavit to be filed in the office of the clerk of the court, and caused a writ of attachment to be issued ” thereon, plaintiff cannot be heard to say that the affidavit was not made • and filed prior to the issuance of the writ.
    Error to Berrien; Coolidge, J.
    Submitted June 5, 1895.
    Decided July 13, 1895.
    Case by John G-. Wiesinger against the First National Bank of Benton Harbor for the malicious prosecution of an attachment. From a judgment for the defendant, plaintiff brings error.
    Reversed.

      G. M. Valentine and W. C. Hicks, for appellant.

      Victor M. Gore and George S. Clapp, for appellee.
   Long, J.

This action is brought to recover damages for maliciously suing out a writ of attachment against the property of the plaintiff by the defendant bank. The affidavit upon which the writ of attachment was issued was made by the president of the bank, and alleges, among other things, that the defendant in the writ (the plaintiff here) was indebted to the bank in the sum of $750, which amount was then due upon express contract. The causes for the issuing of the writ are stated to be that the defendant in the writ “is about to remove his property out of this State with intent to defraud his creditors; that the defendant is about to abscond from the State to the injury of his creditors; and that he has assigned his property with intent to defraud his creditors.” The affidavit was made on September 30,1893. The indebtedness consisted of three notes, aggregating $750. Among these notes was one for $600, which plaintiff in this suit claims was not due at the time suit was brought upon it. The court below directed verdict- in favor of defendant on the ground that it was acting upon the advice of counsel, to whom had been communicated all the facts in relation to the matter.

It appears from this record that the last day of grace on the $600 note was Saturday, September 30, 1893, the day upon which the attachment was issued. Mr. Wiesinger had all that day in which to pay this note. 2 Am. & Eng. Enc. Law, p. 396. The suit was therefore prematurely brought on the note, and the bank had no legal right to an attachment for the amount it claimed to be due. Estlow v. Hanna, 75 Mich. 219; 2 How. Stat. §§ 7986, 7987. The bank officers apparently knew this. Mr. Bailey, the president, testified upon that subject as follows:

“Q. Did you ask Mr. Gore [counsel for the bank] whether suit could be brought on this note on the 30th of September, or not?
“A. We had enough that was already past due. There was some discussion as to how much was due. * * *
“Q. So that, as to the question whether suit could be brought on that note of $600, September 30th, you didn’t ask Mr. Gore at all?
“A. No, sir; not as to whether suit could be brought. I did ask him this; he said we were not obliged to lie down, and see the property run away from us, even if the paper was not due.
“Q. So that you considered that the note was not due so that suit could be brought upon it?
“A. I should consider that a man had until 4 o’clock of that day to pay that paper in. *' * *
“Q. You knew there could be no suit brought on that note on the 30th of September; at least you believed that?
“A. Not until the close of business; but still—
“Q. You had not yet got to the opening of business on the 30th?
“A. No, sir.”

Mr. Bailey also testified that he knew what the law was as to the time of notes falling due.

Mr. Gore testified that Mr. Bailey told him that he thought the $600 note was due. He was asked:

“Q. You say yourself, you didn’t examine the note?
“A. I didn’t. Didn’t see it at all. Never saw it until it was here.
“Q. You did not stop to see whether the days of grace had expired or not ?
“A. Mr. Bailey is a banker. He said it was due.
“Q. Did you examine the note at all, or ask any question about whether the days of grace had expired?
“A. No, I simply asked when it was due.
“Q. You left that to him, didn’t you?
“A. Didn’t leave anything to him; never considered it.
“Q. You asked him if it was due, and he said it was?
“A. Yes, sir; he went to ascertain that fact.”

Witness further said:

“,My idea at that time was that the note could be sued on that day. There is authority for that position. .
“Q. Did you examine any authority on that question?
“A. No; I looked up authority with reference to the collaterals particularly. That was the question presented to me, — whether or not, having collateral for his note, he had a right to the attachment, — and I ascertained he had.
“Q. You heard Mr. Bailey say here that he understood now, and then, that that note would mature at the close of banking hours Saturday?
“A. I heard him say he would have until á o’clock in the afternoon to pay it.”

It has several times been held in this court that in an action for malicious prosecution proof that defendant placed all the facts before his counsel, and acted upon his opinion, established probable cause; and in attachment proceedings that rule was also held. Le Clear v. Perkins, 103 Mich. 131. In the present case, however, the party making the affidavit testifies that he knew the $600 was not yet due, and he apparently did not consult counsel upon that question, but determined to attach for that as well as for the amount actually due. Mr. Bailey confesses that he was a banker of experience; knew the law as to when a note would become due; when suit could be brought upon it he also knew, and knew that this was premature. He had no legal right to tie up by attachment several hundred dollars’ worth of plaintiff’s property upon a note not yet due. The court was in error in directing verdict in favor of defendant. It was at least a question for the jury to determine whether the bank officers did not act from malicious motives and without probable cause.

Claim is also made by the plaintiff that the affidavit was not made and filed before the writ issued. Plaintiff is not in a position to raise that question. The declaration sets forth that “the defendant caused the said affidavit to be filed in the office of the clerk of the court, and caused a writ of attachment to be issued.” In the face of this allegation in the declaration, the plaintiff cannot be heard to say that no affidavit was filed.

The judgment below must be reversed, and a new trial ordered.

The other Justices concurred.


text:
    DENNISON v. ALLEN.
    Statutes — Amendment—Pending Proceedings — Cleaning Drains.
    Act No. 203, Pub. Acts 1893, amendatory of the drain law ' (3 How. Stat. chap. 40, as amended by Act No. 187, Pub. Acts 189L, though containing no saving clause, did not operate to oust a township drain commissioner of jurisdiction over proceedings then pending to clean out a drain, acquired by virtue of a petition so framed as to comply with both acts.
    Error to Monroe; Kinne, J.
    Submitted June 13, 1895.
    Decided July 13, 1895.

      Assumpsit by Martin Dennison against Edward A. Allen, as township treasurer, to recover money paid under protest for drain taxes. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Randall & Corbin,- for appellant.

      C. A. Golden, for appellee.
   Long, J.

This action is brought to recover moneys paid under protest for drain taxes. The plaintiff had judgment below.

A petition was presented to the town drain commissioner August 21, 1893, asking for the cleaning out of Bear Swamp drain, in accordance with the provisions of Act No. 227 of the Public Acts of 1885, as amended. The commissioner, on September 13, 1893, made his order of determination, and such further proceedings were had that an assessment of benefits was made on a special assessment roll September 27,1893. The drain was duly-cleaned out, and no objection was made by the plaintiff or any other party interested until the work was fully completed. '

The contention here is that the drain commissioner was ousted of jurisdiction by Act No. 203, Pub. Acts 1893. For this reason the court below directed the verdict in favor of the plaintiff. This act took effect September 1, 1893, some 12 days before the commissioner made his first order, though the petition was in his hands on August 21st. The act of 1885 was amended in 1887, 1889, 1891, and 1893. The act of 1885 contained the following:

“Saving all acts done and all rights acquired at the time this act takes effect, and any proceedings had or begun may be carried forward and completed thereunder the same as they might have been had this act not been passed.”

None of the amendatory acts contains a saving clause. The act of 1885 provides for the cleaning out of drains; and it is conceded that the petition was sufficient for such purpose under that act, as amended by section 1, chap. 8, Act No. 187, Pub. Acts 1891, by requiring the petition of five freeholders of the township, one or more of whom should be owners of land which had been originally assessed for the construction of such drain. Section 1, chap. 8, of that act provides:

“Whenever a drain, or any portion thereof, needs cleaning out, deepening,'widening, or extending, any five freeholders of the township or townships in which such drain is situated, one or more of whom shall be owners of land which, at the time of its construction, was assessed therefor, may make application in writing to the commissioner by whom it was constructed, or to his successor in office, setting forth its necessity; and the commissioner shall, as soon as practicable thereafter, go upon the line thereof, and carefully examine such drain, and if, in his judgment, the request of the applicants should be granted, he shall fix the per cent, of the cost of cleaning out that the owner of such parcel or lot of land shall be assessed therefor: * * * And provided further, that such assessment shall be made according to benefits, and shall be subject to appeal the same as in the first instance, except that, in all cases under this section where drains are only cleaned out, the cost thereof may, in the discretion of the drain commissioner, be assessed upon the same per cent, fixed for the construction thereof: And provided further, that whenever any such drain shall need widening or extending, the same proceedings shall be had throughout, in every respect, as are provided in this act for the locating and constructing of a drain in the first instance.”

The only other amendment to section 1, chap. 8, of the act of 1885 by the amendatory act of 1891 is that providing that in case of an established county drain having its beginning, entire course, and terminus within one township, and where all the lands liable to be assessed for benefits are in the same township, a majority of the owners of the land assessed for construction may make application to have the papers and records and proceedings transferred by the county drain commissioner to the town drain commissioner, and thereafter to be under the jurisdiction of the town drain commissioner.

Tlie petition filed with the drain commissioner was for cleaning out only, and not for deepening or widening. The petitioners, eight in number, set out that they were freeholders of the township in which the drain was located, “and that two of their number, to wit, Benjamin C. Austin and Newton Squires, are the owners of lands which, at the time of the construction of said drain, were assessed therefor.”

The title of Act No. 208, Pub. Acts 1893, is:

“An act to amend section two of chapter one, sections seven, eight, and fourteen of chapter three, section six of chapter six, section one of chapter eight, and to add a new section to chapter six, to stand as section sixteen, of act number two hundred and twenty-seven of the Public Acts of 1885, entitled, ‘An act to provide for the construction and maintenance of drains, and the assessment and collection of taxes therefor, and to repeal all other laws relative thereto,’ approved June 20, 1885, as amended by the several acts amendatory thereof.”

The changes made in section 1 of chapter 8 are the only ones which need be noticed, as that section gives the jurisdiction to the town drain commissioner to clean out any drain within the township, upon proper application made to him. It provides:

“Whenever a drain, or any portion thereof, needs cleaning out, straightening, deepening, widening, or extending, any five freeholders of the township or townships in which such drain is situated, one or more of whom, shall be owners of land liable to an assessment for benefits in the cleaning out, deepening, widening, straightening, or extending, as the case may be, may make application in writing to the commissioner by whom it was constructed, or to his successor in office, setting forth its necessity; and the commissioner shall, as soon as practicable thereafter, go upon the line thereof, and carefully examine such drain, and if, in his judgment, the request of the applicants should be granted, he shall fix the per cent, of the cost of cleaning out that the owner of such parcel or lot of land shall be assessed therefor: * * * And provided further, that such assessment shall be made according to benefits, and shall be subject to appeal the same as in the first instance, except that, in all cases under this section where drains are only cleaned out, the cost thereof may, in the discretion of the drain commissioner, be assessed upon the same per cent, fixed for the construction thereof.”

This section also contains a like provision to the one of 1891 in reference to the transfer of papers from the county drain commissioner to the town drain commissioner, only it is a little more specific as to the transfer of the records, and also provides for the transfer of funds. This section also, as does the act of 1891, provides that, in case of widening or extending any drain, the same proceedings shall be had as in the location of the drain originally; also, that drains may be cleaned out, widened, etc., under one petition. The section also makes some other changes which are unimportant to the present controversy.

The petition in the present case would have been sufficient for cleaning out if it had been presented under section 1 of chapter 8 of the drain law of 1893. It shows that it is for cleaning out merely; that it is signed by at least five freeholders of the township in which the drain is located; and that one or more of them are the owners of land liable to assessment for benefits in the cleaning-out of the drain It is evident, then, that no material changes were made by the act of 1893. The act, as seen by its title, is only an amendatory one, and does not provide for the repeal of a single section of the former acts. The act of 1885 is the original act, and the amendments of the different years only make changes in certain of its sections. The proceedings for the laying out of drains, or for the cleaning out, deepening, or widening, are all under the act of 1885, as amended by these various acts. A petition for cleaning out is under the act of 1885, as amended by the acts of 1891 and 1893, and, of course, must conform to the changes made by these amendatory acts. It evidently was not the intent of the legislature to disturb any proceeding already commenced; but, even if the act could he so construed, it does not disturb this proceeding, as the petition was sufficient to confer jurisdiction under the act, and the order made for cleaning-out and the order for assessments conform to all the provisions of both acts. The act of'1885 and all the amendments made to it since that time are to be read as one act. . It is'the act of 1885, as amended. Conrad v. Nall, 24 Mich. 275. It is held that a repealing statute, containing no saving clause, which substantially re-enacts the law repealed, does not affect a pending suit brought under the original act. Moore v. Township of Kenockee, 75 Mich. 332. But the statute of 1893 was not a repealing statute, but was merely amendatory, and re-enacited the other parts not changed. It did not have the effect to oust the commissioner of jurisdiction.. His duties under the petition were the same as under the original act. His jurisdiction was complete, and the court below was in error in holding otherwise.

The judgment below must be reversed, and a judgment entered here in favor of the defendant for costs of all the courts.

The other Justices concurred.


text:
    MILLER v. DAVIS.

    1. Statutes — Retroactive Operation — Determining Heirs op Decedent.
    2 How. Stat. § 5990 et seq., providing that, “ when any person shall have deceased having title to any lands in this State,” specified proceedings may be had to determine “ who are or were the legal heirs of said deceased person,” is not limited to cases where the ancestor died after the passage of the act.

      2. Adverse Possession — Payment of Taxes — Evidence.
    7he mere assessment of land to a claimant thereof, and the payment of the taxes by him, is insufficient to continue an adverse possession previously held by his grantor, especially where the latter had abandoned the premises prior to conveying them.
    3. Adverse Possession — Color of Title — Entry by I-Ieir of Former Owner.
    An entry upon land by an heir of the patentee thereof, from whom no conveyance is shown, is not without color of title, although the patent is not in his possession, and others have in fact acquired title to the land by adverse possession.
    A Statute of Limitations — Actions Affecting Realty
    A right of action to recover the possession of real estate, accruing prior to the time when the Revised Statutes of 1838 took effect, is governed by the statute of limitations theretofore existing. Rev. Stat. 1838, p. 575, § 8.
    Error to Mackinac; Adams, J.
    Submitted April 5, 1895.
    Decided September 26, 1895.
    Ejectment by Annie M. Miller and others against John W. Davis and another. From a judgment for defendants, plaintiffs bring error.
    Affirmed.

      James McNamara, for appellants.

      Henry Hoffman, for appellees.

       Rehearing denied December 24, 1895.

   McGrath, C. J.

This is ejectment. The government patent issued October 12, 1830, to Joseph St. Andre. In March,. 1836, Edward Biddle executed a bond for a deed of the property to Antoine Martin, who went into possession. Biddle died in 1859. In 1861, John Biddle, administrator of the estate of Edward Biddle, conveyed to Louis Martin. Louis Martin, in 1866, conveyed to Louis Martin, Jr.; and, in 1873, Martin conveyed to Jacob Wendell, who died in 1879. Plaintiffs are the heirs of Wendell. No conveyance from Joseph St. Andre was shown, but the patent itself was found among the papers of Edward Biddle. Plaintiffs’ testimony tended to show that Antoine Martin and Louis Martin occupied adversely for upwards of 20 years; that the taxes upon the property for the years 1.857 to 1872, inclusive, except for seven years (for which seven years the tax rolls were not in the county treasurer’s office), had been assessed to and paid by the Martins; and that for the years 1873 to 1879, both inclusive, the taxes had been assessed to Wendell, and paid by him for each year except the last named. This suit was commenced October 5, 1892. Joseph St. Andre died in 1825. Defendants trace their title from I he alleged heirs of Joseph St. Andre; and the testimony offered in their behalf tends to show that Antoine Martin did not occupy the property for 20 years, but abandoned the same after living thereon for a few years, because of Biddle’s inability to give a good title; that Louis St. Andre, wlm, it is claimed, was an heir of the patentee, found the premises vacant, and went into possession in 1875 or 1876; and that since that time defendants and their grantors have been in possession.

In order to show title from the heirs of Joseph St. Andre, defendants introduced in evidence certain proceedings had under 2 How. Stat. § 5990 et seq., in the probate court for the county of Mackinac, in 1880, to determine the heirs, of Joseph St. Andre, consisting of a petition signed by Louis St. Andre, the order fixing the time for the hearing and directing the publication and service, the affidavit of publication, and the order of determination. Objection was made to the introduction of these proceedings, on the ground that the statute is prospective. The statute is not limited to cases where the' Ancestor dies after the passage of the act. It is to secure a determination as to “who are or were the legal heirs.” It is to be invoked in any case where any person shall have deceased having title to lands. It is remedial in its character, takes away no vested rights, and is, like a statute establishing a rule of evidence or one designed to perpetuate testimony, unobjectionable because in a sense retroactive. Cooley, Const. Lira. (6th Ed.) 457-460.

Defendants had the undoubted right to show that

Louis St. Andre was an heir at law of Joseph St. Andre, and entered claiming title as such. The acquisition of title by plaintiffs was not admitted, but was disputed. No testimony was offered on behalf of plaintiffs tending to show that Louis Martin, or any person in that chain other than Antoine Martin, had occupied the premises. The showing that the lands were assessed to the grantors of plaintiffs, and that the taxes had been paid for a portion of the time, was not in and of itself sufficient to continue the adverse or hostile possession, especially if the premises had been abandoned by Antoine Martin, the buildings removed to adjoining premises, and the fence around the inclosure, which had been occupied, allowed to rot down. The fact of Louis St. Andre’s entry, and a possession without molestation for 15 years thereafter, were cogent as bearing upon the character of what is by plaintiffs alleged to have been an adverse holding. His entry was not adverse to his cotenants, but in recognition of their rights, under a claim of title as an heir of Joseph St. Andre, the patentee of the entire tract. But, conceding that plaintiffs had established title by adverse possession at a time prior to the entry of Louis St. Andre, the latter cannot be said to have entered without color of title. Miller v. Clark, 56 Mich. 337; Hoffman v. Harrington, 28 Mich. 90; Hecock v. Van Dusen, 80 Mich. 359.

It is insisted that, under the revised statutes of 1838, Antoine Martin’s possession, being for more than one year, was a disseisin of the real owner, and, no possession having been attempted, claimed, or taken for 25 years,, the real owner must be regarded as having abandoned his-claim and title, and any assertion of title afterwards made by him would be of no validity, and such person would therefore be in the same position as a stranger to the title. The case must, however, under express provisions of Rev. Stat. 1838, p. 575, § 8, be governed by the statute as it existed prior to the revision. Section 3 of the repealing act (Rev. Stat. 1838, p. 697) must be held to apply only where provision is not made in the chapter itself.

The judgment is affirmed.

The other Justices concurred.

       Respecting the rights acquired by virtue of the entry and occupancy of Louis f-t. Andre, the court instructed the jury as follows:
      “ If you find that, in 1876 or 1877, this man St. Andre went into the possession of that lot 4, claiming to own it, — found it vacant, went into possession, claiming to own it, — and continued to live there, and occupied it, and his possession was open and peaceable and notorious, and he continued there down to 1881, and then conveyed the property to the defendants here, and they continued in that possession right along down to the date of the commencement of this suit, then I charge you that the possession of St. Andre and of these defendants is to be taken together, and, if it amounts to more than 15 years, then it would give them a title by adverse possession. Now, of course, that is based on the idea that ho entered tlxere under a paper title, under a claim of title by some writing; and in that connection I call your attention to the patent which was issued to Joseph St. Andre. It appears, I think, in the evidence, that Louis St. Andre was one of the heirs of Joseph St. Andre, and he claimed under that patent, which he says — which it is claimed here — had been issued to Joseph St. Andre by the Unbed States; and, if there was no paper title, then, as I said in the other case, his adverse possession would only pertain to that portion of the lot which he actually included in the fence, — in the inclosure, — and actually tilled, occupied, and cultivated, or used. On the other hand, if there was a paper title, it was the basis of his claim, and, if that paper title covered the whole lot, then the adverse possession would cover the whole lot. The defendants, or those under whom they claim, had a right to enter into the possession and claim said lot, if at the time they made the entry they found the lot vacant and unoccupied. If such entry was made under a paper title and claim of ownership, it. would extend to the whole lot, if the whole lot was described in and covered by the paper title. * * * There are a great many side-issues brought in here, but the real question of adverse possession on-the part of the plaintiffs and on the part of the defense is the only one in the case. If the plaintiffs have established a claim by adverse possession, it may be overthrown by the defendants’ coming in and holding the lands 15 years; and if they have done so, and their possession is open, adverse, continuous, and notorious for a period of 15 years, then, no matter if the plaintiffs’ adverse possession had been enough to give them title, yet the defendants must prevail.”


text:
    FULLER v. SWENSBERG.
    1. Possession of Land — Color or Title.-
    An occupant’s possession of land is coextensive with his claim and color of title. If in possession of a part under color of title to the whole tract, his constructive possession extends to the whole.

      2. Tenancy in Common — Conveyance op Specific Parcel by One Tenant.
    Where a city lot owned by tenants in common is divided by a street into two separate and distinct parcels, a conveyance of one of such parcels to a stranger by one of the tenants is not inoperative, within the rule relating to conveyances by a cotenant of specific parts of the common property.
    3. Adverse Possession — Tenancy in Common — Ouster—Evidence.
    Any acts by a tenant in common in possession, equivalent to a denial of the rights of his cotenant, are sufficient to set the statute of limitations in motion as against the latter. The ouster need not necessarily be founded upon a deed assuming to convey an entirety.
    4. Same-Quitclaim Deed.
    An ouster of a tenant in common may be predicated upon a quitclaim deed from a cotenant purporting to convey the entire interest, as well as upon a deed with covenants of warranty.
    5. Same.
    Where the grantee in a deed from a tenant in common purporting to convey the entire estate enters into possession of the land, such deed is evidence of the extent of his claim and of the character of his entry and' possession. Whether an entry by virtue of such a conveyance of itself operates as a disseisin of the cotenant, or whether notice or knowledge of the adverse claim must first be brought home to him, is, perhaps, open to question; but, in any event, actual notice need not be shown.
    6. Same.
    A tenant in common executed a quitclaim deed purporting to convey the entire estate. The grantee entered into possession, claiming to own the whole property, and he and his grantees maintained an actual, continuous, and exclusive possession thereof for 28 years, improving the premises, payiog the taxes assessed thereon, and successively conveying the entire interest by warranty deed. The owners of the remaining interest resided in the immediate neighborhood during the greater portion of such period of occupancy. Held, upon a bill for partition filed by the latter, that an absolute title by adverse possession had been established in the defendants.
    Appeal from Kent; Adsit, J.
    Submitted April 19, 1895.
    Decided September 26, 1895.
    Bill for partition by Philo C. Fuller and another against Conrad G. Swensberg and others. From a decree dismissing the bill as to a part of the lands, complainants appeal.
    Affirmed.

      Sweet, Perkins & Judkins, for complainants:
    Ouster, as against a cotenant, must be shown by acts which amount to a disavowal of the relation of cotenancy; and the usurping possession must be so adverse in its character, so open, notorious, continuous, exclusive, visible, and distinct, as to convey notice of an intention to acguire title as against him. Dubois v. Campau, 28 Mich. 315; Campau v. Campau, 44 Mich. 34, 45 Mich. 368; Highstone v. Burdette, 54 Mich. 332, 61 Mich. 56; Cook v. Clinton, 64 Mich. 313; Fenton v. Miller, 94 Mich. 215; Pierson v. Conley, 95 Mich. 619; Watkins v. Green, 101 Mich. 493.
    Actual notice of the adverse occupancy must be given, or, in its absence, there must be such acts of exclusive ownership, unequivocal, overt, and notorious, as of themselves to import notice of their hostile character to the other “cotenants. Northrop v. Marquam, 16 Or. 173, and cases there cited; Chandler v. Ricker, 49 Vt. 128; Gannaway v. Tarpley, 1 Coldw. 572; Greer v. Tripp, 56 Cal. 209; Packard v. Johnson, 57 Cal. 180; Warfield v. Lindell, 38 Mo. 581; Wommack v. Whitmore, 58 Mo. 448; Cooks v. Simmons, 55 Ark. 104; Squires v. Clark, 17 Kan. 84; Barret v. Coburn, 3 Metc. (Ky.) 513; Ball v. Palmer, 81 Ill. 370; Forward v. Deetz, 32 Pa. St. 72; Berg v. McLafferty, 12 Atl. Rep. (Pa ) 460; Adam v. Ames Iron Co., 24 Conn. 235; Day v. Davis, 64 Miss. 253; Prescott
      v. Nevers, 4 Mason, 330; Thornton v. York Bank, 45 Me. 161; Baily v. Trammell, 27 Tex. 328; McClaskey v. Barr, 47 Fed. Rep. 154; Fry v. Payne, 82 Va. 759; Burns v. Byrne, 45 Iowa, 287; Stewart v. Stewart, 83 Wis. 364.
    There can be no ouster under a quitclaim deed. Woods v. Banks, 14 N. H. 111; Hume v. Long, 53 Iowa, 299; Packard v. Johnson, 57 Cal. 180.
    A quitclaim deed is not constructive notice. Wade, Notice, § 204, and cases cited; Peters v. Cartier, 80 Mich. 129, and cases cited.
    A conveyance by one joint tenant or a tenant in common of a specific part of the common property to a stranger can have no legal effect, or operate to the prejudice of a cotenant. Porter v. Sill, 9 Mass. 34; Bartlet v. Sarlow, 12 Mass. 348; Griswold v. Johnson, 5 Conn. 363; Hartford, etc., Co. v. Miller, 41 Conn. 112; Marsh v. Holley, 42 Conn. 453; Duncan v. Sylvester, 24 Me. 482; Jewett v. Stockton, 3 Yerg. 492; Jeffers v. Radcliff, 10 N. H. 242; Whitton v. Whitton, 38 N. H. 127; Ballou v. Hale, 47 N. H. 347; Holcomb V. Coryell, 11 N. J. Eq. 548; Boston, etc., Co. v. Condit, 19 N. J. Eq. 394; Stark v. Barrett, 15 Cal. 361; Gates v. Salmon, 35 Cal. 576; McKey v. Welch, 22 Tex. 390; Good v. Coombs, 28 Tex. 34; Mattox v. Hightshue, 39 Ind. 95; Shepardson v. Rowland, 28 Wis. 108; Markoe v. Wakeman, 107 Ill. 251; Holt v. Robertson, 1 Mc Mul. Eq. 474.
    Where there is a privity of estate between the parties, payment of taxes by one is entirely unimportant, unless knowledge of that fact is brought home to the cotenant. McQuiddy v. Ware, 67 Mo. 74; McClaskey v. Barr, 42 Fed. Rep. 614, 47 Fed. Rep. 161.

      Myron H. Walker (Taggart, Wolcott & Ganson, of counsel), for defendants:
    An entry under a conveyance which purports to convey the entirety is equivalent to an express declaration on the part of the grantee that he enters claiming the whole to himself, and is such a disseisin as sets the statute of limitations in motion in favor of- the grantee. Freem. Coten. § 224, and cases cited; 11 Am. & Eng. Enc. Law, 1114, and cases cited; Ricker v. Butler, 45 Minn. 545; Kinney v. Slattery, 51 Iowa, 354; Watkins v. Green, 101 Mich. 493; Foulke v. Bond, 41 N. J. Law, 538; Wright v. Kleyla, 104 Ind. 223; Bath v. Valdez, 70 Cal. 350. And it is immaterial that the deed is a quitclaim only. Horne v. Howell, 46 Ga. 13; Higbee v. Rice, 5 Mass. 344; Unger v. Mooney, 63 Cal. 586. But, whatever effect an entry and.possession under a quitclaim deed may have, it is clear that in this case there has been an actual ouster, under all the authorities, and an adverse possession that has ripened into title. From 1868 down to the date of this suit, in 1891, all entries have been made and possession has been held by defendants and their grantors under and by virtue of full covenant warranty deeds, duly recorded, purporting to convey the complete and absolute title to the whole premises; and the possession held thereunder has been actual, continuous, and adverse for more than 23 years before suit brought. Dubois v. Gampau, 28 Mich. 304; Highstone v. Burdette, 54 Mich. 329, 61 Mich. 59; Watkins v. Green, 101 Mich. 493; and cases previously cited.
    In any event, the quitclaim deed from Ball to Latinrer constituted color of title (3 Washb. Beal Prop. [5th Ed.] p. 167; Sedg. & Wait, Tr. Title Land, § 780; Hoffman v. Harrington, 28 Mich. 90; Miller v. Clark, 56 Mich. 337; Hecock v. Van Dusen, 80 Mich. 359; Wright v. Mattison, 18 How. 56; Hall v. Law, 102 U. S. 466; McCamy v. Higdon, 50 Ga. 629; Castleberry v. Black, 58 Ga. 386; Veal v. Robinson, 70 Ga. 809; Minot v. Brooks, 16 N. H. 376; Wells v. Iron Co., 47 N. H. 253; Cowly v. Monson, 10 Biss. 182; Parker v. Newberry, 83 Tex. 428), and as such characterized the entry made under it as adverse, and raised the presumption that the claim of title was coextensive with the conveyance (Sedg. & Wait, Tr. Title Land, § 763; 1 Am. & Eng. Enc. Law, 234; Murray v. Hudson, 65 Mich. 670; Humbert, v. Trinity Church, 24 Wend. 604; Pillow v. Roberts, 13 How. 477; King v. Carmichael, 136 Inch 20; Gregory v. Gregory, 102 Cal. 50; VanGunden v. Iron Co., 52 Fed. Rep. 838; Rutter v. Small, 68 Md. 133; Forest v. Jackson, 56 N. H. 357).
    Defendants’ title by adverse possession is complete, independent of conveyances of record or color of title. Wood, Lim. § 266; Freem. Coten. §§ 228, 229; 11 Am. & Eng. Enc. Law, 1115-1117; Dubois v. Campau, 28 Mich. 304; Littlejohn v. Barnes, 138 Ill. 478; Laraway v. Larue, 63 Iowa, 411; Knowles v. Brown, 69 Iowa, 13; Robidoux v. Cassilegi, 10 Mo. App. 516; Rickard v. Rickard, 13 Pick. 251; Lefavour v. Homan, 3 Allen, 354; Bennett v. Clemence, 6 Allen, 10; Burns v. Headerick, 85 Tenn. 102; Henning v. Warner, 109 N. C. 406; Johnson v. Toulmin,
      18 Ala. 50; Bolton v. Hamilton, 2 Watts & S. 294; Fishar v. Prosser, 1 Cowp. 217.
    Actual notice or knowledge of ouster or adverse possession need not be brought home to the ootenant. Freem. Coten. § 230; Dubois v. Campau, 28 Mich. 304; Highstone v. Burdette, 54 Mich. 329; Cook v. Clinton, 64 Mich. 314; Lodge v. Patterson, 3 Watts, 77; Law v. Patterson, 1 Watts & S. 191; Warfield v. Lindell, 30 Mo. 282, 38 Mo. 578; Lapeyre v. Paul, 47 Mo. 590; Baldwin v. Ratcliff, 125 Ill. 376; Littlejohn v. Barnes, 138 Ill. 478; Laraway v. Larue, 63 Iowa, 407; Knowles v. Brown, 69 Iowa, 13; Greenhill v. Biggs, 85 Ky. 155; Frick v. Sinon, 75 Cal. 337; Oglesby v. Hollister, 76 Cal. 136; Winterburn v. Chambers, 91 Cal. 170; Van Gunden v. Iron Co., 52 Fed. Rep. 838; Alexander v. Kennedy, 19 Tex. 488; Hicks v. Bullock, 96 N. C. 164; Rutter v. Small, 68 Md. 133.
   McGrath, C. J.

This is a bill, filed in 1891, for partition of two portions of mill lot D in the city of Grand Rapids. The following sketch of a part of the Kent plat will aid in an understanding of the situation:

The westerly terminus of Bridge street, as dedicated, was Canal street. The “Bridge Street' Bridge,” so called, was constructed in 1852 by a private corporation. Its approach was upon lot D, under a lease from the owners of that lot. The grant was of a parcel 66 feet in width, but the bridge itself was from 33 to 38 feet in width. The city afterwards acquired all interest in the bridge. In 1872 or 1873, an abutment was erected at a point on a line with the west wall of the flouring mill hereinafter referred to. Since the city acquired title, the bridge has been widened. The land in controversy consists of a strip about 16 feet, wide at the canal and 9 feet wide at the dock line. It is conceded that complainants and defendants are owners as tenants in common of that portion of lot D lying south of the bridge, but defendants claim title to the strip lying north of the north line of the bridge by adverse possession since 1863.

In 1863, Daniel Ball and Charles H. Carroll were owners in common of said lot D. Ball was the owner of lot C, and in February, 1863, he conveyed by quitclaim deed to one Latimer “all of those portions of lots C and D, Kent plat, lying north of and adjoining the so-called ‘Bridge Street Bridge,’ and south of the so-called ‘Old Salt Well Lot,’ * * * excepting and reserving all riparian rights in Grand river, or in the bed thereof, lying west of and adjacent to said premises.” In February, 1864, Ball conveyed by warranty deed to one Nichols “all of his right, title, and interest” in lot D, warranting and defending the same, “except the right to draw water and the water rights and riparian rights in and to the bed of Grand river.” Latimer, in 1863 and 1864, by separate deeds, conveyed to each of the following named persons, George H. White, John B. Moon, A. W. Pelton, and John Mangold, “an undivided one-fourth of all of lot D lying north of Bridge-street bridge,” and other lands. The deed to White was a warranty; the other three deeds excepted lot D from the warranty. Each of these deeds contained the following: “It is intended by this deed to convey one-fourth of all of the lots, pieces, and parcels of land described in and conveyed by a deed,” and then follows an enumeration of five deeds, one of which is the deed from Ball to Latimer. White, in 1866, conveyed by quitclaim deed to Moon, and Pelton, /in 1864, conveyed by warranty deed to Mangold. Man-gold and Moon, in 1867, by warranty deed, conveyed the undivided one-third to Cary and Collins. In 1868, Man-gold, by warranty deed, conveyed an undivided one-third to Cary and Collins. In 1871, Cary and Collins conveyed by warranty deed an undivided one-sixth to Barnes. Moon died testate in 1869. Under his will, Mary Moon took an undivided one-sixth, Lillie E. Mangold an undivided one-twelfth, and Georgiana Moon an undivided one-twelfth. Collins, in 1872, conveyed to Cary by warranty deed an undivided one-fourth. Cary, in 1875, conveyed by warranty deed an undivided one-sixth to Barnes. So that in 1875 Mary (Moon) Shriver owned an undivided one-sixth, Lillie E. (Mangold) Manley an undivided one-twelfth, Georgiana Moon an undivided one-twelfth, Jacob Barnes an undivided one-third, and A. X. Cary an undivided one-third. In 1881, Shriver, Manley, and Moon conveyed by warranty deed their undivided one-third to defendants, and Barnes and Cary in the same year, by circuit court commissioner’s deed, conveyed their undivided two-thirds to the Grand Rapids Savings Bank, which bank conveyed by warranty deed to defendants. Isaac Nichols, in 1867, quitclaimed the undivided one-fourth of lot D to Naysmith. Naysmith, in 1873, quit-claimed the undivided one-half of lot D south of Bridge street to Sarah Nichols, and in 1888 the title to this undivided half of that portion of lot D lying south of Bridge street reached defendants. Complainants trace their title to the undivided one-half of the entire lot from Carroll. Their immediate grantor was Cornelia G. Fuller, who acquired her title in 1869, at which time she was a resident of Grand Rapids, and has since continued to reside in that city. Complainants acquired their title in 1879, at which time they were residents of Grand Rapids, and have since continued to reside there.

It is clear from this record that in 1862 and 1863 a flouring mill, to be operated by water power, was built upon lot C, and the same has been operated continuously since that time; that the south-east corner of the mill was less than 15 feet north of the north line of lot D; that the chute into which the grain was delivered to the mill was located on the southerly side of the mill; that the ofiice was located in the south-west corner of the mill; that as early as 1873 a brick office, two stories above ground, having a south frontage of 20 feet, and connecting with the mill, was built at the south-west corner of the mill; that the front of this office encroached upon the 66 feet devoted to bridge purposes; that the abutments of the present bridge were constructed in 1872 or 1873, and the footings thereto extended north of the north line of the 66 feet aforesaid; that when the bridge was widened, and when these abutments were constructed, the consent of defendants’ grantors was first obtained; that when the mill was built the space between the mill and the roadway was partially filled in by defendants’ grantors, and when the office was built further filling was done, and for a number of years prior to the commencement of these proceedings the whole space had been filled in to a level with the bridge floor; that when the mill was built a plank way was constructed from the bridge at a point directly south of the office to the mill, and along the south side of the mill; that said planking extended south so as to cover all of the strip in controversy; that the entire portion of lot D in question has been since 1863 used in connection with the operation of said mill, and as an approach thereto; that in said space lumber has been piled, wagons have been stored, and teams hitched from time to time during the entire period; that defendants and their grantors have from time to time excluded other persons from said premises; that since 1863 the taxes upon “all of lot C lying four feet south of flouring mill and all of lot D lying north of Bridge street” have been assessed to and paid by defendants or their grantors; that during the same period the taxes upon one undivided half of that portion of lot D lying south of the bridge have been assessed to and paid by complainants or their grantors, and the taxes upon the other undivided lialf have been assessed to and paid by defendants or their grantors; that the insurance upon the office building has been always taken out in the name of defendants or their grantors; that from and including Latimer all of the grantees of undivided parts of the land in question were, during their holdings, interested in operating the flouring mill aforesaid; that defendants and their grantors, since the conveyance from Ball, have entered into possession of said premises, and occupied the same, claiming to own the entire interest in the said land in dispute.

The rules respecting the acquisition of title by adverse possession as against a cotenant have been fully discussed by this court in numerous cases. Dubois v. Campau, 28 Mich. 304; Campau v. Dubois, 39 Mich. 274; Sands v. Davis, 40 Mich. 14; Campau v. Campau, 44 Mich. 34, 45 Mich. 368; Highstone v. Burdette, 54 Mich. 332, 61 Mich. 56; Cook v. Clinton, 64 Mich. 313; Fenton v. Miller, 94 Mich. 215; Pierson v. Conley, 95 Mich. 619; Watkins v. Green, 101 Mich. 493.

In Dubois v. Campau, 28 Mich. 304, the record was silent as to any acts or declarations accompanying the entry. The trial court instructed the jury that—

“If they found that Joseph Campau had occupied the property for more than 20 years, without any claim by the plaintiffs or their ancestors to a share of the rents and profits, and without actual acknowledgment of the rights of the plaintiffs or their ancestors, and with the knowledge of the latter, then they are well warranted in presuming anything in support of defendants’ title, and they may presume either an actual ouster of the plaintiffs and their ancestors by Joseph Campau, or a conveyance by them to Joseph Campau. Joseph Campau being in possession, he and his heirs are presumed to have had a good title, and the burden of proof is upon the plaintiffs to show title in themselves.”

This instruction was approved, and the judgment affirmed. Mr. Justice Campbell, with whom Mr. Justice Craves concurred, held that upon such facts the inference or presumption of title was one of law, while Mr. Justice Christiancy held it to be one of fact for the jury. Mr. Justice Cooley concurred with .Mr. Justice Christiancy, but assented to the affirmance of the judgment upon the ground that under any charge that could have been properly given in the ease the jury should have returned the verdict which they did, and that any different verdict should have been set aside as unwarranted.

In Campau v. Dubois,—

“Where one of several heirs had taken exclusive possession of land to which all were entitled as tenants in common, and had improved it without interference from the others, though they lived in the immediate neighborhood, and no possessory action was brought by them, or by their heirs or representatives for more than 25 years after their death, it was held that no possession could properly be found that was not adverse and exclusive within the statutory period of limitation, and that there could be no recovery in the right of the excluded parties.”

In Sands v. Davis, Sands entered under a quitclaim deed from Filer, claiming the entire title, and it was held that he owed no duty to the other tenants. In Highstone v. Burdette the court would seem to have observed the rule as contended for by Mr. Justice Christianity in Dubois v. Campau.

The present case is here on appeal from a chancery decree. Here there was an entry under a deed which purported to convey the entire estate. The deed is supplemented by testimony clearly tending to* show that the entry was under a claim of ownership of the whole property; that defendants’ grantors bought, and intended to buy, the entire interest; that this claim of ouster and adverse possession had been consistently maintained from 1863 to the commencement of this suit; that until 1884 neither complainants nor their grantors ever asserted any claim to any interest in the premises, and after that time seven years elapsed before any proceedings were instituted; that prior to 1876, — a date beyond the statutory period, — not only had Latimer entered, but White, Moon, Pelton, and Mangold entered; Pelton and White retired; Cary and Collins and Barnes acquired interests and entered upon the premises; and all these parties entered under conveyances giving them, with the parties in actual possession, the entire estate. The quo animo of the original entry and of these subsequent entries does not depend alone upon the conveyances. The fact is not disputed.

Complainants insist that a quitclaim deed cannot operate as an ouster, citing Woods v. Banks, 14 N. H. 111; Hume v. Long, 53 Iowa, 299; and Packard v. Johnson, 57 Cal. 180. In each of these cases, however, the conveyance was simply of all the grantor’s right, title, and interest, and it was held that a deed could not be even color of title beyond what it purports to convey; that these deeds were merely releases of the interest of the grantors; and that no ouster of the true owner would arise. An ouster need not necessarily be predicated upon a deed from a cotenant. One cotenant may oust another in the absence of any conveyance except that which creates the cotenancy. The ouster must, in such ease, arise from other acts. Defendants must show acts equivalent to a denial of the rights of the cotenants. The deed is evidence of a claim to the entire premises, of the character of the entry, and of the possession under it. It cannot be said to* be any the less notice because not a warranty. Conceding that the receipt of a quitclaim deed puts the grantee upon inquiry, it does not follow that defendants’ grantors did make inquiry, or that they did not rely upon the deed as a conveyance of the entire estate, or that they did not intend to claim title to the whole. If the question of good faith should be considered, it is to be determined from all the facts. There is nothing in this record upon which an inference of bad faith may be predicated.

Many of the authorities hold that an entry under a conveyance which purports to convey the entirety is equivalent to an express declaration on the part of the grantee that he enters claiming the whole to himself, and is such a disseisin as sets the statute in motion in favor of the grantee. Freem. Coten. § 224; 11 Am. & Eng. Enc. Law, 1114. Other authorities hold that the statute does not begin to run until the eotenant has had notice or knowledge of the ouster. 3 Shars. .& B. Lead. Gas. Real Prop. 121. But it is not necessary that actual notice he shown or brought home to the cotenant. It is said in Packard v. Johnson, 57 Cal. 180, that plaintiff was ousted from the point of time when he became aware of such claim, or (at the very least) from the time when, as a prudent man, reasonably attentive to his own interests, he ought to have known that his cotenant asserted an exclusive right to the land. Whichever rule is applied, the full statutory period has-run against complainants, for it must be conceded that before the expiration of the 15 years a prudent man,, reasonably attentive to his own interests, ought to have discovered that- defendants’ grantors had asserted an exclusive right to this parcel of land.

The facts of this case bring it clearly within the rule contended for by Mr. Justice Christiancy in Dubois v. Campau. The original entry is shown to have been adverse. The intent with which the entry was made is-shown as a matter of fact. The delay or acquiesence lias been for 13 years more than that required by the statute' of limitations. The cases of Cummings v. Wyman, 10 Mass. 464, and Rickard v. Rickard, 13 Pick. 251, are cited in that case by Mr. Justice Campbell. Both were partition cases. Mr. Justice Christiancy, in commenting upon them, says:

“The court considered the case [Cummmgs v. Wyman] upon the evidence returned, and confirmed the finding.. * * * The evidence was direct and positive of facts which of themselves constituted an actual ouster long prior to the statute period, and shows affirmatively that the possession was adverse, and there was no evidence of an opposite tendency. And the remark of the court -that if the case had been submitted to a jury, and they had' found the other way, the verdict would have been set aside (though unnecessary, and by way of illustration),, was well founded. But, an actual ouster and adverse possession being affirmatively shown by direct evidence, without any evidence to the contrary, there was no room for and no need of any presumption; and all that is said upon that point is a mere dictum. The court, however, expressly treats the presumption as one of fact, not of law, so that the case as well as the dictum is directly opposed to the doctrine for which it is cited here. Rickard v. Rickard also expressly holds the presumption to be one of fact, to be found by the Jury from .the evidence. But it is remarked: ‘It is well settled that a long, exclusive, and uninterrupted possession by one, without 'any possession or claim of profits by the other, is evidence from which a jury may and ought to infer an actual ouster.’ The case was a petition for a partition, where the court, like a jury, considered it upon the weight of the evidence, and found, as any sensible jury must have found from so long a period of exclusive possession under a claim of the whole title (which was there shown), that the possession was adverse.' And if a jury in such a case, and upon such evidence, had found otherwise, I should have held without hesitation that the verdict ought to be set aside as against evidence.”

It is urged that a conveyance by a tenant in common of a specific part of the common property to a stranger can have no legal effect, or operate to the prejudice of a cotenant. That rule hás no application to the situation here. The conveyance here did not attempt to carve out a specific parcel from a larger parcel. The bill alleges that lot I) had been divided into two separate and distinct parcels, one lying north and the other south of Bridge street.

There was some testimony tending to show that this strip of land was used by persons other than defendants, to gain access to mills located north of the mill operated by defendants. But the question is an open one, upon this record, as to whether, according to the original dedication, Mill street did not extend to the south line of lot C, and whether a right of way has not been acquired by prescription along the line of Mill street extended; but a determination of those questions is unnecessary. It is clear that any use of this strip west of Mill street, at least, by persons other than defendants and the persons having business with them, has been a permissive use, and in recognition of defendants’ claim of ownership. There can be no question concerning defendants’ possession. The office built by defendants’ grantors in 3 873 encroached upon the 66 feet granted to the bridge company. It was held in Campau v. Campau, supra, that the possession of an occupant is coextensive with his claim and color of title. If in possession of a part under color of title to the whole tract, his constructive possession extends to the whole. There is no question but that the possession of the office was notorious and exclusive.

The decree is affirmed, with costs to defendants.

The other Justices concurred.