Bennett v. Horr ( 1881 )

Graves, J.

The present writ of error brings in controversy the same title we examined in Gamble v. Horr 40 Mich. 561, and the only difference suggested is that the tax-title which played a part in that record is not now in question, and that the present case shows, what the other did not contain, that the premises are part of a larger territory wMch was reserved to James Biley by the treaty at Saginaw in 1819, and which territory the government in that year granted to him. Hence the single point is presented, whether the appearance of - this isolated fact that James Hiley became grantee from the Hnited States of a large tract embracing this parcel more than sixty years ago is sufficient to change the legal aspect of the case to the prejudice of Horr’s claim.

Apart from this fact his title is made out, and, although it is not traced through paper muniments to Hiley, it is supported by peaceable possessionand derives color from formal papers having the appearance of regularity and good faith. If the ancient grant from the government to Biley is in the way it must be because it proves the existence of an outstanding title which is paramount to Horr’s, and therefore makes out that whoever else may be entitled to sue for the property, he at least is not. Green v. Scarlett 3 Grant 228; Holbrook v. Debo 99 Ill. 372. But to have this effect it must appear in some way that it is a present, subsisting and operative legal title, and one on which the owner could sue and recover. Jackson v. Hudson 3 Johns. 375; Jackson v. Todd 6 Johns. 257; McDonald v. Schneider 27 Mo. 405; Masterson v. Cheek 23 Ill. 72; Sutton v. McLeod 29 Ga. 589; Atkins v. Lewis 14 Grat. 30.

No doubt in many cases }3resumption may favor an intendment of the continued subsistence and distinct force of the alleged outstanding title.

But when there is nothing besides the bare fact that sixty years previously the government passed the title to a third person, and where no facts exist to suggest any inconsistency between such title and the title of the plaintiff, or to indicate any disposition by such grantee of the government not in harmony with the right and title of the plaintiff, and when the claim of the plaintiff is sustained by public and undisturbed possession held for some years in character of owner under claim of title accompanied by title papers which assume to invest him with the ownership, it would be contrary to reason and justice to allow any such presumption. To do so would amount to an arbitrary intendment that the transactions connected with the plaintiff’s title and which according to all appearance were honestly designed and honestly and in good faith carried out, were all infected with wrong, and actually generated in hostility to the right of another who neither pretends to any right or steps forward out of the darkness to assert any. A view of that kind would be flying in the face of principie. The office of presumption is on the other side. An adherence to the moral policy of the law seems 'to suggest that it ought to be presumed as matter of fact, subject to contradiction or impeachment, that the plaintiff’s title is not one which is separate and in conflict with the ancient title, but is a mere continuation of it. Doe v. Butler 3 Wend. 149; Demeyer v. Legg 18 Barb. 14. Applying this reasoning we ought to consider that Horr’s title emanated from the government (Gamble v. Horr supra), and in its transit to Horr passed through Riley.

In view of the great lapse of time and the want of facts to show any possession under the Riley title it would be necessary to presume that it has become extinguished, unless we suppose it to be identical with Horr’s title on the presumption mentioned, and the latter seems preferable. Jackson v. Hudson supra; Jackson v. Harder 4 Johns. 203. The proof therefore of the old grant from the government to Riley had no tendency by itself to show an outstanding title paramount to Horr’s and sufficient to overreach it, and the case was subject to the same ruling which was applied in Gamble v. Horr.

The judgment should be affirmed with costs.

Marston, C. J. and Coolbt, J. concurred.