27 Wash. 593 | Wash. | 1902
The opinion of tlie court was delivered by
This is an action of unlawful detainer. The defendants (the appellants here), answering severally, set up title in themselves to the land described in the complaint, by virtue of their continuous, uninterrupted possession thereof for ten years preceding the commencement of the action. The cause was tried by the court, a jury being waived. Bindings of fact were made in favor of the respondent, and judgment was rendered thereon for the respondent, that he recover the property described in the complaint. From this judgment the appeal is taken. A brief statement of the facts is as follows: In 1874 H. T.
The appellants base their right to the possession of this land upon §§ 4796 and 4798 of Ballinger’s Code, which is what is commonly known as the “Limitation Act.” Section 4797 is as follows:
“The period prescribed in the preceding section for the commencement of actions shall he as follows: Within ten years, — 1. Actions for the recovery of real property, or for the recovery of the possession thereof; and no action shall be maintained for such recovery unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question within ten years before the commencement of the action.”
It is contended by the appellants’ counsel that, under this section, good faith, or a belief that he is right, is not required of the usurper -of the possession of the land; that-it is not a question of conscience, hut purely one of visible, outward conduct. He classes this possession as: First,
“In our opinion our statute of limitations is like that of most other states, one of adverse possession, and under it the rightful owner of real estate is seized of the same, whether or not he is in actual possession thereof, unless the same is in the actual adverse possession of some other person. This being so, it follows that when ownership and seizin is once shown it will be presumed to have continued until such presumption is overcome by allegation and proof of adverse possession in some one else.”
Moore v. Brownfield, 7 Wash. 23 (34 Pac. 199), is cited in support of appellants’ contention that no color of title or claim of right is necessary in the usurper. But this case does not bear out such contention. The point upon whicli the case was reversed was error of the court in its instructions in relation to the merger of the ten-year statute of limitations into the old statute of twenty-year limitations. It was said in the opinion, however, that the objection that the possession without color of title cannot be adverse, so as to entitle the possessor to the. benefit of the statute of limitations, is not well taken. But it was asserted that such possession must be under a claim of right. The other eases from this state are not applicable to the state of facts presented here. A literal construction cannot be given to the statute of limitations in this respect, or it would prevent the recovery of land where permissive possession had been given. The court found that the defendants knew that the property was in litigation between
The judgment is affirmed.
Reavis, O. J., and Anders, White, Hadley, Mount and Fullerton, JJ., concur.