Howatt v. Green

102 N.W. 734, 139 Mich. 289, 1905 Mich. LEXIS 924
CourtMichigan Supreme Court
DecidedMarch 7, 1905
DocketDocket No. 40
StatusPublished
Cited by10 cases

This text of 102 N.W. 734 (Howatt v. Green) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Howatt v. Green, 102 N.W. 734, 139 Mich. 289, 1905 Mich. LEXIS 924 (Mich. 1905).

Opinion

Carpenter, J.

This is a bill to remove a cloud from complainants’ title to lot 2 of Fourchette’s Addition to the City of Sault Ste. Marie. Complainants claim title by record and by adverse possession. Defendants claim title by record, and deny complainants’ adverse possession. As we believe that complainants have acquired title by adverse possession, it is unnecessary to determine, and we will not determine, who holds the record title.

The facts respecting adverse possession are these: The original patent was granted May 6, 1873, to John Baptiste Le May, alias John Baptiste Rebec. September 3, 1873, Le May transferred the land by warranty deed to Richard Payment (defendants’ mediate grantor). At the time of this conveyance one Michael Frichette or Fourchette (complainants’ mediate grantor) was in possession of the land, claiming to own the same by a warranty deed of record given by one who does not appear to have had the title. Frichette continued to occupy the land under this claim of ownership until a short time before his death, in 1890, when he conveyed the same by warranty deed to his daughter, Victoria Roberts. Since that time the property has been in the possession of the various immediate and mediate grantees of said Frichette, who have paid the taxes assessed upon it, and who claim and have claimed to own it.

Frichette’s possession of this land, which dates from 1851, presumably originated in the permission of the owner. It [291]*291is contended that such owner never had knowledge of Frichette’s hostile claim, and that the principle that possession does not in such cases become adverse until the owner has such knowledge (see Ann Arbor Fruit & Vinegar Co. v. Railroad Co., 136 Mich. 599 [66 L. R. A. 431]), is a complete answer to complainants’ claim of adverse possession. Assuming that there was no knowledge of Frichette’s adverse possession before, the question arises whether such knowledge was not acquired at the time of Payment’s purchase in 1813. At that time Frichette was in possession of the land, claiming to be the owner. We have held that, when land is sold by one not in possession, the purchaser is bound to ascertain the rights of the possessor. See Allen v. Cadwell, 55 Mich. 8; Michie v. Ellair, 54 Mich. 518; Seager v. Cooley, 44 Mich. 14; Hommel v. Devinney, 39 Mich. 522; Russel v. Sweezey, 22 Mich. 235.

Upon the argument, counsel for defendants indicated his doubt of the application of the principle of these cases to the case at bar, suggesting that Payment acquired by his deed all of Le May’s rights, included in which was the right to be informed of Frichette’s hostile holding. We cannot accept this suggestion. Its force as an argument is based, in our judgment, upon the implied proposition that the information which charges an owner with knowledge that the possession originally rightful has become hostile must proceed from some particular source. This proposition is not sound. Knowledge is requisite in such cases, not because of the demerits of the adverse possessor, but because otherwise the rightful owner would be deprived of his property without any opportunity to assert his rights. It is not therefore necessary that that knowledge proceed from any particular source. It is not necessary that the adverse possessor give notice. If the owner acquire knowledge, no matter how, that the possession is hostile, the statute of limitations commences to run. See Ann Arbor Fruit & Vinegar Co. v. Railroad Co., supra. It follows that any circumstance brought to the [292]*292owner’s knowledge which proves to him that the possessor asserts a hostile title starts the running of the statute of limitations. It follows, too, that his accession to Le May’s title did not exempt Payment from the consequences of any knowledge which proved to him that Frichette asserted a hostile claim.

Rejecting, as we must,, therefore, the suggestion of defendants’ counsel under consideration, no reason occurs to the court why such a purchaser as Payment is not presumed to know what all purchasers are presumed to know. Frichette was in exclusive possession, claiming to be the owner of this land. There was on record a warranty deed which purported to convey the title in fee. If Frichette’s possession had at that time ripened into a complete title, no one would maintain that Payment did not have constructive notice of that title. Shall we then say that possession is constructive notice where the possessor’s title is complete, but is not where that title is incomplete ? Surely no such distinction can be maintained. Payment could not in law, then, be ignorant — and he was not in fact ignorant — of Frichette’s exclusive possession of the land. With knowledge of this possession, it was Payment’s duty to inquire of Frichette the extent of his interest and the source of his title, and he is chargeable with what he would have learned had he made this inquiry. See Hommel v. Devinney and Russell v. Sweezey, supra. We are by no means certain that Payment did not make this inquiry and learn the exact facts. But it is immaterial whether he did or not, since, as already stated, the law presumes such knowledge. We are bound to say, therefore, that Payment had notice at the time of his purchase in 1873 of Frichette’s hostile holding, and, unless something occurred to prevent it, that the statute of limitations commenced to run at that time, and, long before this suit was commenced, made complainants’ title unassailable by defendants.

[293]*293It is- claimed by defendants that at the time of Payment’s purchase he made an arrangement with Prichette which prevented the operation of the statute of limitations. In a depbsition, introduced in evidence in the court below without objection, Payment testified that at the time of his purchase he took steps to remove Prichette, and finally entered into a written lease, executed in duplicate, by which Prichette was to have possession of the property during his life and pay the taxes assessed against the property, and that he (Payment) had this lease until 1899, when it was destroyed by fire in his office and residence. Complainants urge that this testimony was prohibited by section 10212, 3 Comp. Laws, aDd that the court cannot therefore consider it. We think it a sufficient answer to this contention to say that, by failing to object to the introduction of this evidence, complainants waived the statutory prohibition and made the testimony admissible. Ripley v. Seligman, 88 Mich. 177.

If this testimony of Payment is credited, it affords a complete answer to complainant’s claim of adverse possession. If such testimony is discredited, complainants’ claim is established. The vital question in this case, then, is whether said testimony is entitled to credence. The trial court, as we infer, decided that it was not. We approve that decision. Ordinarily we do not state our reasons for crediting or discrediting a witness. But since in this case we discredit a witness who is not directly contradicted, we deem it proper to depart from our usual practice and state our reasons for not believing Payment’s testimony respect-' ing the execution of a lease by himself and Prichette.

If this testimony were true, we would expect it to be corroborated by some accompanying circumstance. The witness refers to no such corroborating circumstance, and the record shows none. No one appears to have known of any' steps taken by Payment to oust Prichette. No one appear to have ever read or heard of this lease.

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Cite This Page — Counsel Stack

Bluebook (online)
102 N.W. 734, 139 Mich. 289, 1905 Mich. LEXIS 924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howatt-v-green-mich-1905.