133 Ind. 169 | Ind. | 1892
Lead Opinion
On the 23d day of February, 1889, the appellee^, Oscar Born, filed his complaint in this action against the appellants, Sar-ah E. Barnes, Thomas Garvin and the unknown heirs of Robert Barnes, alleging that he was the owner of the undivided one-third of a certain lot in the city of Evansville, and that the defendants were the owners, of the other two-thirds, and asking for partition. After-wards Edward C. Reitz, Frederick Buente and Henry Hoye were made parties defendant, and summons was issued and served upon them.
Issues were joined and a trial had, resulting in a finding and judgment for the appellee. Motion for a new trial was filed by the appellants, which was overruled, and: exceptions taken, and the ruling assigned as error. The facts-important to be considered are as follows: On September-23, 1856, Jacob Born, father of appellee, was the owner of' the lot in question, and, together with his wife, was in possession thereof and occupying the same as a dwelling. On-that day Born and his wife mortgaged said real estate to the firm o.f Bement & Yiele, to secure the payment of a. note for about $500. On the 1st of May, 1857, Robert.,
The case was tried and the rulings of the court were made upon the theory that the purchaser, Robert Barnes, his heirs and their grantees occupied and had possession of the real estate, after the death of Jacob Born, as co-tenants with Barbara Born, during her life, and after'her death, as co-tenants with the son, the appellee; that the acts of the
Our statutes of limitation are statutes of repose. If the theory of counsel for appellee, and the theory upon which this case was tried, is correct, an imperfect title acquired
¥e fully comprehend the doctrine contended for by-counsel for appellee, and appreciate the extent to which the authorities carry it. The doctrine is clearly applicable,, and is proper to be carried to its full extent in a case where: one tenant occupies the joint premises, when the interest, of the parties are understood and known and recognized. One gains no rights when he occupies premises owned by himself and a co-tenant, with a mutual understanding that he should do so, or does so, recognizing the rights of his co-tenant in the premises, even though he retain the rents and profits, and pays taxes, and makes improvements. In such a case persons might own land as co-tenants for any length of time without the one gaining any rights or the. other losing any, as being barred from recovery, but such a case differs very materially from the one at bar. "When, the party goes into possession with the absolute right of' exclusive possession, and having the right to exclude alii others, and claims and occupies the same as his own, excluding all others, collecting and using all rents as his own,, paying all taxes, making improvements and treating the property as his own; and when the fact occurs, which divests him of the legal title to the undivided one-third, he fails to acknowledge any such failure or defect of title to such undivided interest, but continues to use the property as be
The appellee’s right of action, as appears from the uncontroverted facts, was barred in fifteen years from the death of Jacob Born, and the court erred in overruling appellant’s motion for new trial. The judgment is revei’sed, with instructions to proceed in accordance with this opinion.
Rehearing
On Petition for a Rehearing.
Counsel for appellee have filed a petition for rehearing, and support it by an earnest and able argument, and cite numerous authorities on the questions as to what constitutes an ouster, adverse possession, and that the occupancy of one co-tenant is, in law, the occupancy of all the tenants, and not adverse to those out of possession; and counsel contend that the statute of fifteen years’ limitation only applies in a partition suit where one of the co-tenants
In this case the party took possession of the real estate, not as a co-tenant, but as purchaser and owner of the premises. At the time he took possession in pursuance of the purchase at the sheriff’s sale, he had the right to the possession of the whole premises, and he had the right to the rents for the whole premises. Had Mr. Born, the judgment defendant, survived his wife, the purchaser’s title, by virtue of the purchase, would have been perfect to the whole premises. Thus, when the purchaser took possession under the purchase he did so as owner, and was entitled to the possession of the whole, and not as a part owner or as a co-tenant with any person. Barnes, the purchaser, afterward died, and the land went by descent to his heirs, and through mesne conveyances the title and. possession passed to the appellants. Barnes and those claiming under and through him continued the possession of the land after the death of Born the same as before.
The law fixes the status by which Barnes, the purchaser, took possession and held the land. He took possession of all of the land and received all of the rent for the same, because he had the legal right to the whole. No person prior to the death of Born had any right .,0 occupy the land with him or to have any share of th rents. Having taken possession and taken all the rents he continued to hold possession and receive and use all of the rents until his death, when his heirs did likewise until they sold it and turned the possession over to their grantees, who continued to occupy and collect and use the rents for the whole premises. The occupancy once taken as of right, it continues in the same way until interrupted.
When Born died the laud which Mrs. Born took a one-
The petition for rehearing is overruled.
Dissenting Opinion
Dissenting Opinion.
During the life of the husband, Barnes was entitled to and did hold the entire premises, subject to the inchoate interest of the wife. When the husband died her inchoate interest became absolute, and she was thereafter the owner in fee of the undivided one-third of the premises, and tenant in common with Barnes.
I doubt that the mere continued occupancy of Barnes, which is all that is shown by the record, was, of itself, sufficient to set in operation the statute of limitation as against his co-tenant. I, therefore, doubt the correctness of the conclusion reached.
Miller, J., also doubts upon the same grounds.