Norris v. Hall

Grant, J. (after stating the facts). 1. It is urged that the court erred in holding that the evidence to maintain adverse possession must be disregarded because the notice was insufficient under the new rule of the court. The court found that there was no adverse possession of 10 years’ duration by Hall under any claim; that he did not acquire title under the tax deed of 1888 until October 17, 1893, and less than five years before the commencement of suit. Under these findings it becomes unnecessary to determine the question of the sufficiency of the notice attached to the plea. The testimony as to adverse possession is not returned. The finding of the court, therefore, is conclusive. 2. The tax deed for the years 1869 to 1880 was inadmissible in evidence, and is ineffectual, for the reason that there was no proof of the regularity of the tax proceedings. The law under which the sale took place did not provide that deeds issued thereunder should be prima facie evidence of title. Farmers & Mechanics’ Bank v. Bronson, 14 Mich. 361, 373. [175] The tax deeds for 1882 and 1883 were void, under Hall v. Perry, 72 Mich. 205 (40 N. W. 324). Counsel for defendant, in their brief, assert that the court erred in holding that the tax deed for 1882 was void because the sale was made under the law of 1885, and that that law was not retroactive. They state that the deed recites that it was under “Act No. 229 of 1881, as amended by Act No. 7 of 1882.” We have examined the deed (a copy of which is not printed, but which is attached to the original record), and we find no such statement in the deed. The only recital in the deed is that the sale was for the delinquent taxes of 1882, and was made October 6, 1885. The tax deeds for 1887 and 1888 were void, under Millard v. Truax, 99 Mich. 157 (58 N. W. 70). 3. The recitals in the three documents executed in 1846 (one of which was the power of attorney to Dana, another the deed from the survivors to Allsop, and the third the order of the court vacating the plat of North St. Joseph) are the sole evidence of the death of Sterne. These are ancient documents. 2 Jones, Ev. § 312. Recitals in ancient deeds are proof of the facts therein recited, even as against strangers. Underh. Ev. §§ 53, 54; Deery v. Cray, 5 Wall. 795; Fulkerson v. Holmes, 117 U. S. 389 (6 Sup. Ct. 780); Jackson v. Cooley, 8 Johns. 128; Bowser v. Cravener, 56 Pa. St. 142; Chamblee v. Tarbox, 27 Tex. 139. The authorities cited by counsel for defendant are not cases of ancient documents. 4. The power of attorney contains the words, “ excepting therefrom such lots as may have been heretofore conveyed.” Counsel for defendant insist that plaintiff should have shown what lots, if any, were conveyed. The power of attorney does not state that any lots were conveyed. By introducing his deeds covering .the entire land, plaintiff made a prima facie case of ownership. If any land had been sold by his grantors, the onus probandi was upon the defense to show it. 5. Joint tenancy is not created by operation of law, but by the specific act of the parties. 2 Rice, Mod. Law Real [176] Prop. § 420. The deed from Dyson to the five trustees expressly stated that they were to hold “ as joint tenants, and not as tenants in common.” Under the declaration of trust, executed simultaneously with the deed, and the articles of association, which are given in full in. the instrument, the five trustees hold this land in trust for the association, the proceeds of the sale to be divided among the shareholders in proportion to their holdings. Counsel for defendant contend that, reading the instrument as a whole, it was not intended to confer power to sell upon four trustees in the event of the death of one. It is true that the declaration provides for the appointment of a successor in the event of the death of one of their number. We, however, do not think that this takes away the right of survivorship which exists at the common law. Survivorship is the distinguishing attribute of joint tenancy, and has been generally abrogated by statute, except in the case of joint trustees. 2 Rice, Mod. Law Real Prop., supra; 1 Perry, Trusts, § 343. The intent, therefore, to avoid the rule of survivorship, must clearly appear in the instrument itself. Besides, these defendants are not in position to raise the question. They are not cestuis que trustent, who alone can interfere. As long as they are satisfied with the action of their trustees in selling the property, other parties cannot object. 1 Perry, Trusts, supra. Judgment is affirmed. The other Justices concurred.