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from the investigation of the juror that what was in his mind was whether or not and he so replied to a question that I asked him, whether or not the trouble with them was whether the testimony was material, and it is upon that question-and I simply gave to the jury the instructions that I had given to them upon the proposition heretofore."
The jury thereupon retired and returned with a verdict of guilty.
BROOKE, J. (after stating the facts). The first assignment of error discussed in counsel's brief is based upon the refusal of the court to direct a verdict in favor of the respondent upon the ground that the testimony set forth in the information was not material to the issue being tried in the civil case. This contention is based upon the assertion that after the amended bill of particulars was filed the only issue between the parties was whether there had been a settlement between the plaintiff and defendant whereby the defendant had promised to pay to plaintiff the sum of $6,000 in settlement of all their differences. With this contention we cannot agree. Plaintiff in that suit asserted that a contract had been entered into for an equal division of the profits on the Coin and Blanchard drain and further by his amended bill of particulars asserted that $6,000 was the amount later agreed upon to be due the plaintiff under that contract. Respondent by his plea denied both assertions. We think, therefore, that the testimony given by respondent in the civil case in which he denied positively the making of an agreement to divide profits on the Coin and Blanchard drain was material to the issue and that the jury should have been so instructed by the court.
It is next urged by counsel that assuming the materiality of the evidence its falsity was not proven in the case at bar by "two or more witnesses or by one
witness supported by corroborating and independent circumstances." We are of opinion that the evidence of Charles H. Showers supported by that of his wife, Minnie Showers, taken together with the contents of the letters written by the respondent, was sufficient to carry the case to the jury.
Error is assigned upon the language of the court quoted in the statement of fact addressed by the court to respondent during his cross-examination. Respondent was on trial for perjury. He had given testimony which tended to show that the prosecuting attorney prior to the issuance of the warrant in the case at bar had threatened to make an improper use of criminal process for the purpose of collecting the judgment arising out of the civil case. We are not concerned with the explanation given by the prosecuting attorney of the incident in question. The point is, Were the strictures of the learned trial judge delivered to respondent on trial for an offense involving his liberty for a long term of years such as, were calculated to prejudice him in the minds of the jurors who heard the remarks and later brought in a verdict of guilty? We are constrained to hold that the language indulged in by the court was such as naturally would and probably did influence the jury against the respondent to his injury. We have examined the assignments of error touching the alleged improper conduct of counsel for the people and with reference to the admission and rejection of testimony and find therein no reversible 'error.
There are many assignments upon the charge of the court as given and particularly upon that portion of the charge given after the jury returned to the court room for the second time. These it is unnecessary to consider at large. It is sufficient to say that we think the language of the court in the latter portion of his charge is open to the criticism that it was
likely to confuse and mislead the jury and that it failed to give to the jury the exact information required which was whether the letters introduced in evidence were dated before or after the date of the claimed settlement in December, 1910. After a consideration of the whole record we are of opinion that the respondent did not have that fair and impartial · trial to which he was entitled under the law.
Judgment is reversed and a new trial ordered. BIRD, C. J., and OSTRANDER, MOORE, STEERE, FELLOWS, STONE, and KUHN, JJ., concurred.
STANDARD v. JEWELL
1. DEEDS-IDENTITY OF GRANTOR-NAMES.
Where the grantor in a deed testified that his full name was Francis Marion Warner, and that he sometimes signed Francis M. and sometimes Frank M., an objection that the deed was void because signed Frank M., held, untenable.
2. SAME CONVEYANCE PRIOR TO ISSUANCE OF PATENT-VALIDITY. Although the conveyance of homestead lands was made prior to the issuance of the patent to the grantor by the United States, the contention that grantor had no title to convey cannot be sustained.
3. HOMESTEADS-HUSBAND AND WIFE-WIFE LIVING IN ANOTHER STATE.
A wife living separate and apart from her husband in another State has no homestead rights in her husband's lands in Michigan. Affirming Stanton v. Hitchcock, 64 Mich. 316.
4. ADVERSE POSSESSION-LICENSEE-LANDLORD AND TENANT TICE.
It is settled law in Michigan that a tenant or licensee cannot convert his occupancy under license into an adverse holding without actual notice to the holder of the legal title.
5. SAME CONTINUOUS POSSESSION.
Where the occupation of the lands by plaintiffs or any one in their behalf was not continuous, the court below properly held that title by adverse possession was not established.
Error to Otsego; Sharpe, J. Submitted April 15, 1919. (Docket No. 40.) Decided May 29, 1919. Rehearing denied October 6, 1919.
Trespass quare clausum fregit by Frank Standard and others against Edson Jewell, Walter D. Young and others. Judgment for defendants on a directed verdict. Plaintiffs bring error. Affirmed.
W. A. Harrington, for appellants.
James E. Duffy (Russell H. Neilson, of counsel), for appellee Young.
W. L. Townsend, for other appellees.
Plaintiffs sued in an action of trespass, alleging that defendants had wrongfully entered upon their lands and cut and removed therefrom certain timber. Under the plea of the general issue defendants gave notice that they would show that plaintiffs never had title to the lands or any part thereof upon which the alleged trespass was committed and further that the title thereto rested solely and exclusively in defendant Walter D. Young.
The pertinent facts appear to be that one Francis Warner (otherwise known in the record as Frank M. Warner), a civil war veteran, entered upon the land in question, together with 40 acres adjoining, under
the homestead law. He resided upon the land a sufficient length of time to comply with the provisions of the homestead law and on May 17, 1881, he received from the United States Land Office a final receipt in the following terms:
"Final Receipt No. 4761.
"Application No. 7839. Homestead. "Receiver's Office, Reed City, Mich., May 17th, 1881. "Received of Francis Warner the sum of eight dollars being the balance of payment required by law for the entry of S. 12 N. W. 14 and N. 12 of S. W. 4 section 6 in township 32 N. of range 3 west containing 162 80/100 acres. Under section 2291 of the Revised Statutes of the United States.
W. H. C. MITCHELL, Receiver."
Prior to his coming to Michigan said Warner had married one Sarah Hodgkins in the State of New York. She, however, never came to Michigan nor resided upon the land in question with Warner. He instituted divorce proceedings against her in Indiana and claims to have believed he had a decree of divorce; at any rate, he married one Allie D. Plumley, with whom he lived for several years. On June 20, 1881, he deeded the lands in question to Allie D. Warner, his wife, and at his request she, on January 13, 1883, executed a mortgage for $350 thereon to William Corning of Rochester, New York. This money was received by Francis Warner. On May 10, 1884, the United States patent was issued to Francis Warner. It is to be noted that this patent is of a later date than the deed from Francis Warner to Allie D. Warner as well as later than the mortgage from Allie D. Warner to William Corning. Said mortgage was foreclosed and a sheriff's deed covering the land in question issued to William Corning's estate, dated February 24, 1896. Title from the estate passed to defendant Walter D. Young by deed dated August 8, 1910. Plaintiffs rested their claim of title upon two grounds: