Nagelspach v. Shaw

Grant, J. (after stating the facts). The learned circuit judge was correct. The existence and validity of title by lease was not involved. Defendant had no title of record. His father was the owner in fee simple. His occupancy with his father was not notice of any claim of title or right in the son. Title and occupancy, by the father implied that possession was that of the father rather than that of the son. The presumption would be that the son was living with the father under the father’s possession, and not that the father was living with the son under the son’s possession distinct from that of the father. Under the complainant’s evidence that was the arrangement. The father was intending to leave immediately. The son desired a reasonable time in which to vacate. If defendant made that arrangement, and complainant bought and parted with his money under those circumstances, the defendant is not at liberty in this suit to set up in defense the lease with his father and possession under it. The jury found that complainant’s version of the transaction was the true one, that defendant had recognized complainant’s title as valid, had recognized him as his landlord, and that defendant’s right of possession had terminated. The finding is conclusive of the case. The time for defendant to speak was when complainant asked him if he had any claim. Judgment affirmed Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.