Wentworth v. Abbetts ( 1890 )

Lyoh, J.

The plaintiff’s title to the 37-100 of an acre of land in controversy is denied in the answer.' Hence, unless he proved his legal title thereto, he cannot recover, even though the defendant failed to show any title thereto in himself. No rule is better settled than that the plaintiff in ejectment must recover, if at all, on the strength of his own title — not on the weakness of that of his adversary. Naked possession of the land by the defendant will prevail in ejectment against all the world except the holder of the legal title.

The plaintiff’s claim of title rests entirely upon the deed executed to him by Osborne in 1864. At that time sec. Y, ch. 86, E. S. 1858, was in force, and remained in force until the enactment of ch. 365, Laws of 1865. The section was as follows: “ Every grant of lands shall be absolutely void if at the time of the delivery thereof such lands shall be in the actual possession of a person claiming under title adverse to that of the grantor.” The jury have found upon sufficient evidence and under proper instructiens that when such deed was executed Brown was in the actual possession of the land, claiming under title adverse to that of Osborne. It inevitably follows that the conveyance from Osborne is void, and the plaintiff has failed to establish his title.

Several errors are assigned, based upon the rulings of the court on the trial on objections to testimony. These go to the questions of ten and twenty years’ adverse possession found by the jury. Inasmuch as we do not reach these questions, it is unnecessary to consider such rulings. The failure of plaintiff to show that he ever had title to the 3Y-100 of an acre is conclusive of the case.

By the Court.— The judgment of the circuit court is affirmed.