Loranger v. Carpenter ( 1907 )

Grant, J.

(after stating the facts).

1. The first point made in counsel’s brief is:

“The remarks of the court were entirely uncalled for arid almost before any evidence was offered, and only served to indicate to the jury that defendant had no valid defense.”

The point is not further argued. These remarks were very properly made, and related to the record title, about which there was no dispute. There is nothing in them of which any just complaint can be made.

2. Testimony of conversations between Mrs. Cole, who was dead, and a witness, of statements made by Mrs. Cole as to her claim, and not in the presence of Mr. Campau, were properly excluded. Campau and Mrs. Cole were tenants in common, and she could not make assertions of title to a stranger which were not communicated to or known by Mr. Campau. Such assertions would not constitute an open act of hostility to Campau’s title.

3. Counsel for defendant asked a witness on cross-examination whether she had not presented a note against the estate of her mother which she claimed was signed by her mother. This was properly excluded. It was immaterial to the issue in the case, and could not be used for the purpose of testing the witness’ credibility.

4. Statements made by Mrs. Cole recognizing the title of defendant Campau were properly admitted. They constituted admissions against her interests.

5. Defendant sought to show that Campau obtained the deed of her one-fourth interest from defendant by fraud. The evidence was properly excluded. Plaintiff had the legal title, and a court of equity would be the only forum in which to test the validity of a deed from defendant to Campau and the other deeds by which plaintiff obtained her title.

6. Several other objections are raised to the testimony, but the defendant’s counsel neither in his assignments of error nor in his brief refers to the record where the testimony is to be found. We have examined the record and find nothing prejudicial to the defendant’s case. They are not of sufficient importance to discuss.

7. The court correctly instructed the jury as to the acts of hostility required by one tenant in common to constitute adverse possession against his co-tenant. These principles are well understood, and a statement of them is unnecessary. The defendant’s requests so far as they were proper were in substance contained in the oral charge. The plaintiff was the owner of the record title. It is doubtful if the facts made by the defendant’s proof were sufficient to justify a verdict of title by adverse possession. It was, however, left to the jury, and we think they reached the proper conclusion.

The judgment is affirmed.

McAlvay, C. J., and Carpenter, Blair, and Ostrander, JJ., concurred.