which and his tax titles he claims to be entitled to the property in suit.

In considering the question of possession under defendant's titles, and whether or not it was adverse, their validity is of no particular consequence.

The defendant claimed continuous adverse possession of the property in himself and his grantors from the date of the deed to J. W. Winsor, in 1853, down to the time of the commencement of this suit, in 1884, and gave testimony tending to show such possession. The possession thus claimed, and its character, was controverted by the testimony offered by the plaintiff. A part of the plaintiff's testimony upon this subject was the deeds from Phoebe Jane to Mary A Bissell, and from Mary A. Bissell to Francis M. Bissell, and from Francis M. Bissell to Matilda Clinton. It was claimed by the plaintiff that Mrs. Clinton's purchase of the Bissell title constituted her a tenant in common of the property, it conveying to her the original title to one eighth of the property, and that she could not be an adverse holder thereafter.

The circuit judge, in his charge, held that prima facie this was true, but that the prima facie case upon this point might be overcome by evidence that the possession Mrs. Clinton then had she continued under the claim of an exclusive right, and with the intention to exclude the plaintiff from any right or interest therein; that such possession, even though against a co-tenant or tenant in common, was adverse, and, upon the evidence, submitted this question, with the other facts in the case, to the jury; and to this portion of the charge counsel for plaintiff excepted.

We see no error in this charge. The plaintiff knew of the hostile character of Mrs. Clinton's possession. There may be some question, where the party does not go into possession under the conveyance which creates the co-tenancy, whether such conveyance should be presumed to destroy an adverse holding then existing. Be this as it may, certainly the charge was within the previous decisions of this court: Dubois v. Campau, 28 Mich. 304; Campau v. Dubois, 39 Id. 274; Sands v. Davis, 40 Id. 14; Campau v. Campau, 44 Id. 31; Knowles v. Brown, 69 Iowa, 11.

The court charged the jury: "The defense is, that this title of the plaintiff has been wholly divested by the adverse possession, continued for the statutory period. All adverse possession must be open, notorious, continuous, exclusive, visible,

and distinct, as well as adverse. Now, what is meant by this is, that there must be an actual occupancy, as distinguished from a constructive possession, of the property; that is, some one must be in actual possession of the property. Not necessarily living upon the property; if the property is inclosed and cultivated, this would be a sufficient actual occupancy; and if crops were continually growing upon the premises, this would be a visible occupancy; and even though in the interim between the harvesting of a crop and the recropping of the land the succeeding spring no person was actually upon the premises, and nothing done with them, yet, if year after year the land was thus cropped and cultivated, this would be a sufficiently continuous possession within the meaning of the term. as I have given it to you. So a possession is sufficiently notorious if it is open and visible, and the premises are actually occupied, so that the people passing to and fro past the premises may see these visible evidences of occupation. This would make it notorious among those familiar with the premises. It is distinct when it is clearly defined. And in this case I instruct you that if the defendant in this case went into possession of these premises described in the deed of conveyance under which he claims, that deed would define the extent of his occupancy. It would not be necessary for him to occupy each acre of the premises. If he occupied some portion of it, that would be a distinct occupancy of the whole, as defined by the deed under which he entered into possession. The claim must be hostile to the plaintiff."

After thus defining and explaining what kind of possession is necessary to become adverse, the circuit judge, among other things, charged the jury as contained in the following paragraphs, and to each of which counsel for the plaintiff excepted:

"1. Adverse possession of the character which I have defined, for a period of fifteen years, gives a complete title in this state, and defeats the record title of one claiming from the government. And if the defendant has held adverse possession, such as I have defined, for the period of ten years, under or through the so-called Winsor tax title, the action would be barred, and the plaintiff cannot recover in this action; and this would be true if only a portion of the Winsor title was vested in him.

"2. In stating this period of occupancy, gentlemen, I mean to state, and to be understood as stating, that that period of

occupancy must have been for the period of fifteen years, or ten years, respectively, prior to the eleventh day of February, 1884. That is the date of the commencement of this suit; and, of course, the adverse possession must have been sufficient prior to the date of this suit to defeat the plaintiff's action, or he would be entitled to recover under the instructions I have given you.

"3. You will observe that the sole question for you to determine in this case is, whether there has been this adverse possession of the character which I have defined, adverse to the plaintiff, since the parties became co-tenants, as well as before, and continued for a period of fifteen years; or if you find that the defendant held under a tax title, the Winsor tax title, so called, whether such possession as I have defined, and so adverse to the plaintiff, has continued for a period of ten years prior to the commencement of this suit, on the eleventh day of February, 1884. If you find either of these questions in the affirmative, your verdict must be for the defendant; if you find them in the negative, both of them, your verdict must be for the plaintiff.

"4. I further instruct you, if the defendant held adversely and in adverse possession of the premises, within the meaning of that term as I have defined it to you in my charge, which I will not here repeat, for ten years, under or through the so-called Winsor tax title, that the action would be barred by the plaintiff, and the plaintiff would not be entitled to recover, and that this would be true if only a portion of the Winsor title was vested in the defendant; if he went in under a tax title, and held under a tax title, and there was such an adverse possession as I have defined to you was requisite to constitute the adverse possession, and that continued ten years under that tax title, that this would vest the title in the defendant, and the plaintiff could not recover."

We see nothing objectionable in these four paragraphs of the charge. They state the law correctly as applied to the facts of this case as they appear upon the record: Howell's Comp. Stats., sec. 8698; Yelverton v. Steele, 40 Mich. 538; Hamblin v. Warner, 30 Id. 95; Perkins v. Nugent, 45 Id. 156; Sparrow v. Hovey, 44 Id. 63; Campau v. Lafferty, 43 Id. 429; Bower v. Earl, 18 Id. 367.

The withdrawal of the special requests to find could work no prejudice to the plaintiff. He did not present them, or ask them to be given, and made no objection to their withdrawal.

The record shows the attorney for the plaintiff was not present when the withdrawal was made, but it does not show that his absence was from any fault of the court or the defendant. Really, all the facts asked to be found were submitted in the general charge, and the case was one proper to be submitted to the jury.

We have now noted all the assignments needing consideration in this opinion. We have found no error in the record. The judgment must be affirmed.

ADVERSE POSSESSION must be actual, visible, continuous, notorious, distinct, hostile, and exclusive: Evans v. Templeton, 69 Tex. 375; 5 Am. St. Rep. 71; Denham v. Holeman, 26 Ga. 82; 71 Am. Dec. 198; Worcester v. Lord, 56 Me. 265; 96 Am. Dec. 456, and note; Schwallback v. Chicago etc. R. R. Co., 69 Wis. 292; 2 Am. St. Rep. 740, and note 744; Lewis v. Schwenn, 93 Mo. 26; 3 Am. St. Rep. 511; Sherin v. Brackett, 36 Minn. 152.

ADVERSE POSSESSION. If one unlawfully taking possession of land afterwards becomes tenant in common, his possession at once loses its hostile character, and the presumption is, that it remains amicable till the contrary is shown: Carpenter v. Mendenhall, 28 Cal. 484; 87 Am. Dec. 135. Compare Warfield v. Lindell, 38 Mo. 561; 90 Am. Dec. 443. One co-tenant cannot make his possession adverse to other tenants in common except by actual ouster: Page v. Branch, 99 N. C. 97.

HOMESTEADS.

STANTON V. HITCHCOCK.

[64 MICHIGAN, 316.]

OBJECT OF MICHIGAN CONSTITUTIONAL PROVISION FOR HOMESTEAD is to protect that dwelling which has been the actual home of the family from such disturbance as will make them lose its enjoyment. It is confined, by its language, to the property actually occupied as a homestead by a resident of the state, and if the owner has a family, it is the actual home of that family which is protected against creditors.

HOMESTEADS. THERE IS NOTHING IN MICHIGAN HOMESTEAD ACT WHICH CONTEMPLATES that a wife who has never lived on the premises, or claimed to live there, may, after her husband's death, claim such an interest by relation as will avoid his dealings with property which he never meant should be the home of the absentee, however much he may have wronged her. The provisions of the act are confined expressly to resident widows.

WHERE WIFE HAS ONCE HAD HER HOME WITH HER HUSBAND in his dwelling, he cannot deprive her of that vested right by driving her

out. CHARACTER OF ANY PROPERTY AS HOMESTEAD DEPENDS ON INTENTION, and it may be entirely destroyed by a removal of residence, after which the property stands liable to sale or other disposal by the owner at his pleasure.

HOMESTEAD, CONVEYANCE OF BY HUSBAND WITHOUT SIGNATUre of NosRESIDENT WIFE.- A married man went to Michigan, leaving behind him, in New York, his wife and two minor children, she expecting to join him in the new home, but never did. He bought a lot and built a house thereon, and about two years after his arrival remarried, without a divorce from his first wife. The second wife married him in good faith, supposing him to be single, and lived with him as his wife on said premises till his death, prior to which he conveyed the property to her. None of the first family ever lived in Michigan, except that a son, aged then about eighteen, came and was received as a member of his father's new household, until dismissed for ill-treating the children of the second wife; and the husband never made or proposed to make the property a home for the common occupancy of himself and first wife, but it was intended for and actually occupied by the second wife and family, and so continued till the husband's death. Under this state of facts, the land never became the homestead of the first wife, and the husband's deed to the second wife was not void for want of her signature. EJECTMENT.

Lemuel Clute, for the appellant.

Wilson and Trowbridge, for the plaintiffs.

CAMPBELL, C. J. In this case, the controlling facts found are these: In 1873, Thomas J. Hitchcock came to Michigan, leaving behind him, in New York, a wife, Caroline Hitchcock, and two minor children. The wife knew of his coming, and expected at some time to join him, but was never in Michigan. In March, 1875, Hitchcock bought a vacant lot, and subsequently built on it. Whether he began to build or not before his second marriage does not appear, but the house was finished thereafter. In December, 1875, he, without divorce from his previous wife, married defendant, who married him in good faith, supposing him to be single. After the house was built, they moved into the house, and had children, who, with the parents, lived in it as their home till he died, when the second wife became owner by conveyance from Hitchcock, unless void by reason of the claims of the former wife to a homestead interest in it. None of the first family ever lived in the house, except that a son, aged then about eighteen, came and was received as a member of the household, until dismissed for ill-treating the children of the second wife.

It appears from the finding that the first wife never lived in Michigan, and of course never lived in the house; that Hitchcock never made or proposed to make it a home for their common occupancy; that it was intended for and actually occupied by the second wife and family, and so always continued