78 570 102 213 78 570 120 499 WASHINGTON H. BRINGHURST V. THE GRAND RAPIDS & Electment-Undivided interest-Judgment. 1. The record in actions of ejectment is much more important under our statute than it was at common law, where ejectment was merely a possessory action. Under the statute it is used to determine title as well as possession, and the statutory requirements should be observed. 2. The verdict in ejectment must follow the declaration as to the description of the premises, and the extent and quality of the estate claimed. How. Stat. § 7795-7797, 7815, 7821; Reilly v. Blaser, 61 Mich. 399. 3. Where a plaintiff establishes his title to only an undivided onehalf of the land described in his declaration, and the defendant is in peaceable possession, and is not an intruder, judgment should be rendered accordingly, and the declaration may be amended to correspond with the right established at the trial. Hinman v. Booth, 21 Wend. 267. Error to Emmet. (Ramsdell, J.) 6, 1889. Decided December 28, 1889. Argued November Ejectment. Defendant brings error. Reversed. The facts are stated in the opinion. T. J. O'Brien and J. H. Campbell, for appellant. Earle & Hyde, for plaintiff, contended: 1. The question raised by defendant is, can a plaintiff in ejectment recover against a defendant who is in possession without any right or title, a mere intruder, a trespasser,-when the plaintiff is the owner of but an undivided one-half of the premises? We say that plaintiff is entitled to recover the whole description, although he failed to prove title to but an undivided onehalf; citing Lair v. Hunsicker, 28 Penn. St. 115; Johnston v. Jackson, 70 Id. 164; Campbell v. Fletcher, 97 Md. 430; Perry v. Whipple, 38 Vt. 278; Bryan v. Wear, 4 Mo. 106; Hunter v. Starin, 26 Hun, 529; Bradshaw v. Emory, 65 Ala. 208. 2. Even where no legal title is shown by either party, the one showing the prior possession in himself or those through whom he claims will be held to have the better right. Such prior possession is a sufficient title to enable a party to recover against an intruder, and even against one whose claim of title is founded on a later possession; citing Hunter v. Starin, 26 Hun, 529; Whitney v. Wright, 15 Wend. 171; Tyler, Eject. 72. 3. In ejectment plaintiff can recover the entire premises on an undivided interest; citing Covert v. Morrison, 49 Mich. 133; Hardy v. Johnson, 1 Wall. 371; Collier v. Corbett, 15 Cal. 183; Treat v. Reilly, 35 Id. 129; Yancey v. Greenlee, 90 N. C. 317; Weese v. Barker, 7 Col. 178; Alford v. Dewin, 1 Nev. 207. 4. But we say plaintiff proved title to the entire of said premises, and that the court erred in excluding the record of the deed of the other undivided half of the land because only attested by one witness. This fact did not render the deed void; it was as effectual to convey all the interest of the grantor as if attested by two witnesses; citing Dougherty v. Randall, 3 Mich. 581, 585; King v. Carpenter, 37 Id. 363, 369; Price v. Haynes, Id. 487. 5. While, under the decisions in this State prior to the curative act of 1861 (How. Stat. pp. 1488, 1489), the record of such a deed is held not admissible in evidence, such record under How. Stat. § 5727, was legal notice and evidence of the transfer of said undivided one-half interest, and should have been admitted as evidence of that fact; citing Brown v. McCormick, 28 Mich. 215, 220. CHAMPLIN, J. The plaintiff brought ejectment, claiming title in fee to the parcel of land described in his declaration. He did not show actual possession or occupancy, but depended entirely upon paper title, which he showed beyond question to an undivided half of the premises. He failed to prove title to the other undivided half. The land in dispute is in the possession and occupation of defendant as a track for railroad purposes. Prior to 1881, the Bay View, Little Traverse & Mackinac Railroad Company constructed its road upon and over the land in question, and had actual possession thereof. While so in possession, it executed a mortgage to William R. Shelby. This was foreclosed, and the Grand Rapids & Indiana Railroad Company became the purchaser, and succeeded to the possession of the premises in 1882 or 1883, and has ever since operated a railroad over the same. Plaintiff obtained his deed in 1885. It does not appear that before the entry of the Bay View, Little Traverse & Mackinac Railroad Company the premises were in the actual possession of any one. The defendant, succeeding to that possession under a claim of right, and holding it in peaceable possession for such length of time, cannot be regarded as a mere intruder. Neither can it be said that this suit is brought to determine the right of possession merely. It is brought to determine title, and the plaintiff having failed to estab lish his title to the whole premises, and succeeded only as to an undivided half, he was not entitled to a verdict and judgment for the whole.' In this respect there was error in the charge of the court and the verdict of the jury. The court should have directed a verdict for an undivided share, as provided for by section 7815, subd. 6, How. Stat. Had he done so, the declaration might have been amended to correspond with the right established at the trial. Hinman v. Booth, 21 Wend. 267. We adhere to what was said in Reilly v. Blaser, 61 Mich. 399 (28 N. W. Rep. 151). The record in actions of ejectment is much more important under our statute than it was at common law, where it was merely a possessory action, and did not determine the title to the land. Under the statute, it is used to determine title as well as possession, and the statutory requirements should be observed. The verdict must follow the declaration. as to the description of the premises, and the extent and The failure to prove a complete title was due to the rejection of the record of a deed offered in evidence by plaintiff, on which he based an undivided half of his title, with but a single attesting witness. quality of the estate claimed. How. Stat. §§ 7795-7797, 7815. The necessity for this is obvious, when the effect of a judgment in ejectment is considered. Id. § 7821. The judgment must be reversed, and a new trial had. The other Justices concurred. JENNIE PINKERTON V. MARINUS VERBERG. Arrest-Misdemeanor-Warrant-Street walking. 1. An arrest, without a warrant, of an alleged prostitute or streetwalker by a police officer, who is authorized by ordinance to arrest, upon view, any person found in the act of committing any offense against the laws of the State, on mere suspicion that she is plying her vocation upon the street, no act being committed in his presence indicating that she is there for that purpose, is illegal. 2. The following propositions are summarized from the opinion of Mr. Justice LONG: a-Personal liberty, which is guaranteed to every citizen under our Constitution and laws, consists of the right of locomotion,-to go where one pleases, and when, and to do that which may lead to one's business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all citizens. b-One may travel along the public highways or in public places; and while conducting himself or herself in a decent and orderly manner, disturbing no one, and interfering with the rights of no other citizen, there, they will be protected under the law, not only in their persons, but in their safe conduct. c-The Constitution and the laws are framed for the public good, and the protection of all citizens; and no one may be restrained of his liberty, unless he has transgressed some law. d-Any law which would place the keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in his presence, or upon suspicion of felony, would be most oppres 78 573 844NW 579 818ASR 473 133 1 62 78 573 f149 1204 sive and unjust, and destroy all the rights which our Constitu tion guarantees. e-Suspicion that a party has on a former occasion committed a misdemeanor is no justification for giving him in charge of a constable without a justice's warrant; and there is no distinction, in this respect, between one kind of misdemeanor and another. 1 Archb. Crim. Pr. & Pl. 102 (note 1). f-An arrest for misdemeanor, without a warrant, by one who does not see the offense committed, is illegal. Error to Kalamazoo. (Buck, J.) Argued November 1, 1889. Decided December 28, 1889. Case. Plaintiff brings error. stated in the opinion. Hampden Kelsey, for appellant. Reversed. The facts are James H. Kinnane, for defendant. LONG, J. This action is brought by plaintiff to recover damages for assault and illegal arrest. Defendant, at the time of the arrest, was a policeman of the city of Kalamazoo, and claims to have arrested plaintiff because she was a street-walker. It appears that plaintiff lived on Kalamazoo avenue east, and sometime in the forepart of August, 1888, went from her own home to a sister's, living on the corner of Church and Eleanor streets, in the city. There she met a younger sister, and the two went down into the city upon the main street; called into the Watkins House closets; and after plaintiff had shown the younger sister, who had no acquaintances in the city, around the city for a time, the two went together back to the home of the sister, when plaintiff started to return to her home, and in doing so she again passed the Watkins House, but on the opposite side of the street. After having gone some little distance from there towards her own home, she heard some one following her on the walk. She |