Opinion of the Court.

occupancy of the land, and claim of right, with the intention to hold it as against the true owner and all other parties; such occupancy, if continuous for ten years, ripens into a perfect title, after which it is immaterial whether the possession be continued or not." "If you find and believe, from a preponderance of the testimony in this case, that the plaintiff was in the actual, open, notorious, exclusive, continuous possession of any of the lots in controversy for ten years, claiming to own. and hold them as against all others, as to such lots he is entitled to recover."

Tested by these definitions, it is obvious that if the title relied on in this case, by the defendant below, was fully described and characterized by the special verdict, it was defective in two very essential particulars, in that it was not found to have been actual and exclusive. A possession not actual, but constructive; not exclusive, but in participation with the owner or others, falls very far short of that kind of adverse possession which deprives the true owner of his title

Where a special verdict is rendered all the facts essential to entitle a party to a judgment must be found, and a judgment rendered on a special verdict failing to find all the essential facts is erroneous.

In Prentice v. Zane's Administrator, 8 How. 470, 483, it was said: "In the Chesapeake Ins. Co. v. Stark, 6 Cranch, 268, and Barnes v. Williams, 11 Wheat. 415, this court has decided that where, in a special verdict, the essential facts are not distinctly found by the jury, although there is sufficient evidence to establish them, the court will not render a judg ment upon such an imperfect special verdict, but will remand the cause to the court below with directions to award a venire de novo."

In Hodges v. Easton, 106 U. S. 408, where it was contended that an imperfect special verdict might be pieced out and the missing facts be supplied by reference to the other parts of the record, the same conclusion was reached, and the court below was directed to award a new trial.

In the present case, even if the verdict were regarded as a general one, and therefore entitled to be supported by the

Opinion of the Court.

presumption that sufficient facts existed to sustain it, yet we should feel constrained to reverse the judgment, because of the errors complained of in the eighth, ninth, and tenth assignments.

The plaintiff's counsel requested the court to charge the jury that, in order that possession of land may overcome the title of the true owner, "there must be a concurrence of the following elements: Such possession must be actual, hostile, exclusive, open, notorious, and continuous for the whole period of ten years. Every element in this enumeration is absolutely essential, and if one of these elements does not exist there can be no adverse title acquired;" and the court did so charge; but the court then proceeded to say that, after having disposed of the written instructions, "I propose to go outside of what is there stated and give one on my own motion." Those voluntary instructions given by the learned judge, though correct in most respects, were imperfect in the very particulars in which we have found the special verdict defective. The jury were not told that, to make out the defence, the possession, in addition to certain other features properly specified, must be shown to have been actual and exclusive. This clearly appears in the final instruction, which was in the following terms:

"But if you take the other view and find that defendant has a good title and that he is entitled to recover, then I think you ought to go further and find the fact that he entered into. the possession of the premises at a certain time, or as near as you can fix it from the testimony; that he occupied the premises; that he continued in possession for more than ten years prior to the commencement of this suit, which was December 4, 1886. You ought to find, if you can, from the testimony about the time that he went into possession, whether he continued in possession, and whether his possession was adverse, continuous, and hostile prior to the commencement of this suit, or whether Flanagan and his grantees, defendants in this suit, continued in possession that long, it is the same as if Flanagan was in possession that long himself.

"If you find for the defendant, find when he took posses

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Syllabus.

sion, if you can, and, as near as you can, how long he remained in possession before the commencement of this suit. Then your verdict will be, in addition to that, 'We therefore find that at the commencement of this suit the defendant was the owner and entitled to the immediate possession of the premises in dispute.' That disposes of the whole controversy as far as the verdict of the jury is concerned."

Nor do we think that this is one of those cases in which erroneous or insufficient instructions in one part of a charge are corrected or supplied by unobjectionable instructions, on the same questions, appearing in another part. It is evident that the attention of the jury must have been withdrawn from the instructions formally given, as requested, to those announced by the judge, as given on his own motion, and it seems evident that this action of the court misguided the jury, and led them to overlook essential questions involved in the issue they were trying. Smiths v. Shoemaker, 17 Wall. 630; Moores v. National Bank, 104 U. S. 625; Gilman v. Higley, 110 U. S. 47; Vicksburg & Meridian Railroad Co. v. O'Brien, 119 U. S. 103.

Whether, then, we regard the verdict as a special one, not containing findings sufficient to support the judgment, or as a general one, rendered in pursuance of imperfect instructions, we reach the conclusion that the judgment of the court below must be

Reversed and the cause remanded, with instruction to award a venire de novo.

HORN v. DETROIT DRY DOCK COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN.

No. 129. Argued December 5, 1893. Decided December 18, 1893.

In chancery proceedings in the Federal courts, when a plea in bar meets and satisfies all the claims of the bill, and it is sustained, it will, under

Statement of the Case.

equity rule 33, avail the defendant so far as to require a final decree in his favor.

In this case the proofs taken fully and clearly establish the truth of the matters set up and alleged in the defendants' plea, including the complainant's receipt in full satisfaction of all claims.

While it is true that a receipt is open to explanation by parol proof to show what its real consideration was, the issue to that effect must be raised by the pleadings, and must have been taken in the court below, to be available here.

An accord and satisfaction cannot be set aside for mutual mistakes in regard to material facts, if the alleged mistakes have not been set up by proper pleadings.

THE single question presented by the record in this case is whether the action of the court below, in sustaining the plea in bar of the suit and dismissing the bill, was correct.

The appellant, who was the complainant below, alleged in her bill that in July, 1880, she was the owner of the steamers Garland and Excelsior, which were used and employed in navigating the Detroit River and the connecting waters; that the Detroit Dry Dock Company (one of the appellees) held mortgages on these steamers aggregating $22,643, the equity of redemption in which was of considerable value; that on July 22, 1880, the Garland, under command of George Horn, son of the complainant, while proceeding down the Detroit River collided with the steam yacht Mamie, which had on board an excursion party, several of whom were drowned as the result of the collision; that the personal representatives and heirs of those drowned, claiming that the Garland was in fault, commenced suits in admiralty in the United States District Court at Detroit to recover damages on account of their deaths; that the Detroit Dry Dock Company furnished bond for the steamer Garland, and became responsible to counsel for their fees, it being agreed between the complainant and the company that the latter should hold the title to the steamer Garland, in connection with its mortgage, as security for the indebtedness of the complainant, and of all liabilities incurred on her behalf; that shortly after the collision various suits were commenced in the state courts against the complainant personally for damages on account of the collision,

Statement of the Case.

and also a prosecution against her son, George Horn, as master of the Garland; that the complainant employed counsel to defend these suits; that at or about the same time a suit was commenced in the Maritime Court of Ontario against the Garland for supplies furnished the boat by parties residing in Canada, under which an attachment was issued, and the vessel was levied upon and ordered to be sold pendente lite, and at the sale thereof the Detroit Dry Dock Company purchased the steamer for $17,050, which sum it was alleged the company advanced on agreement with the complainant, thus making her total indebtedness to that company amount to the sum of $39,693; that the sum for which the Garland was thus sold, and which was paid into the Maritime Court of Ontario by the Dry Dock Company, was in excess of the claims proved in that court, and that the Dry Dock Company subsequently filed a petition to have the surplus proceeds, amounting to about $11,000, paid over to it as mortgagee, which sum it agreed to credit the complainant after payment of all expenses and costs for collecting the same; that subsequently on September 21, 1880, the complainant conveyed the Excelsior, subject to the mortgage aforesaid, to her son, John Horn, and shortly afterward an execution against him was levied upon the steamer, which was sold thereunder and purchased by the Detroit Dry Dock Company in the name of its secretary for the sum of $505, which was paid by the company under an agreement that it would hold it and the steamer Garland as security for the indebtedness of the complainant and advances made by the company, and would run and operate both vessels, and render an account of their earnings, and that when her indebtedness and advances were paid, return the steamers to the complainant; that the Detroit Dry Dock Company organized a corporation called the Detroit River Ferry Company, to which the steamers were conveyed, as trustee, to carry out the agreement with complainant, all of the stock in which corporation was subscribed for and held by the stockholders of the Detroit Dry Dock Company, and actually belonged to it; that shortly thereafter the Dry Dock Company purchased, for the sum of $23,000, the steamer For