Burke v. Douglass ( 1897 )

Grant, J.

(after stating the facts). 1. The court directed a verdict for the defendant. Whatever rights plaintiff, had were obtained solely from his contract. He entered under it, continued in possession under it, and never notified Mrs. Soule or her grantees that he claimed to hold adversely to it. His contract was not recorded. When Rumsey purchased, he had no knowledge of plaintiff’s rights. He asked plaintiff what they were, to which plaintiff replied that the lot was his. Rumsey then brought suit to eject him, whereupon plaintiff produced his contract with Mrs. Soule as the basis of his rights. He produced it upon the trial in this case, tendering it in evidence “for the purpose of showing how he went into possession, and not for the purpose of claiming any rights under it.” Plaintiff’s counsel seek to bring the case within Cook v. Hopkins, 68 Mich. 514; Cook v. Rounds, 60 Mich. 310. Their claim is that the right of re-entry for nonpayment arose in August, 1879, and that from that time on plaintiff’s possession was hostile and adverse, though nothing was said or done by him to indicate any denial of his vendor’s rights or title. Cook v. Hopkins was submitted to the jury upon the theory that “until Cook received notice or became informed that they repudiated his title, or held against it, their holding was subordinate to his, and the statute did not begin to run.” If, however, that case goes to the extent of holding that, upon the failure on the part of a vendee to comply with his land contract, the right of forfeiture and re-entry arose, and the statute of limitations then began to run, he has not brought himself within that decision. His own proof is conclusive that the right of forfeiture and re-entry was waived by payment upon the purchase price, and its acceptance by the vendor, after the right of re-entry accrued. After Rumsey’s purchase, he produced the contract, and relied upon it, and, according to Rumsey’s testimony, he permitted plaintiff to keep possession by paying the taxes, Rumsey having previously paid them. Possession by a vendee under a land contract is not adverse until he has either complied with its terms, or has in some way given notice to his vendor or his assignees that he claims to hold in hostility thereto. In re Department of Public Parks, 73 N. Y. 566; Heermans v. Schmaltz, 7 Fed. 577; Furlong v. Garrett, 44 Wis. 112; Brown v. King, 5 Metc. (Mass.) 173; Miller v. Larson, 17 Wis. 624; Adams v. Fullam, 43 Vt. 592; 1 Am. & Eng. Enc. Law (2d Ed.), 799. The court was right in holding that plaintiff had not established a title by adverse possession.

2. Plaintiff had not performed his contract, and claims no rights under it as vendee, but claims to hold adversely. Defendant had the legal title, and the right to re-entry for condition broken. The premises were unoccupied, and he took peaceable possession. The law justified him in so doing. If a party “may reclaim his own without committing a breach of the peace,” he is not a trespasser. Vial v. Hofen, 106 Mich. 160.

Judgment affirmed.

The other Justices concurred.