Bourne v. Wiele

159 Wis. 340 | Wis. | 1915

Winslow, C. J.

The question is whether the facts justify-a finding of adverse possession.

Sec. 4211, Stats., provides in substance that ten years’ occupancy of premises under claim of title, exclusive of any other right, such claim being founded upon some written instrument as being a conveyance thereof, or upon the judgment of some competent coart, shall be deemed an adverse holding.

Sec. 2276a, S. & B. Ann. Stats. 1889, as amended by ch. 28, Laws of 1893 (now sec. 2276a, Stats. 1913), provides that on application of the heirs of a deceased person the county judge may issue a certificate setting forth the names of the heirs of the deceased person and their respective interests in the premises of which the deceased died seised, which certificate when recorded in the office of the register of deeds shall be prima facie evidence of the facts therein recited. We should have great hesitation in holding that the certificate authorized by the last named section, granted ex parte, and by the judge at chambers instead of by the court, is a “judgment of a competent court” within the meaning of sec. 4211 above cited. It is not necessary to so hold in order to sustain the judgment.

A quitclaim deed in this state is equivalent, at least for the purpose of conveying title, to a deed of bargain and sale. Home Inv. Co. v. Emerson, 153 Wis. 1, 140 N. W. 283; sec. 2207, Stats. After the execution of the quitclaim deed by the nine children in 1898 the widow held possession of the premises, claiming title under that deed as being a conveyance of the premises. The deed, construed with the certificate of heirship, purported to convey the whole title, and must be held to be a written instrument such as is named in sec. 4211 as sufficient on which to base adverse possession. If it appeared that either the widow or the defendants had ever recognized or acknowledged that the plaintiffs had title as cotenants to any part of the premises, it would probably be necessary that actual knowledge of the changed and hostile character of the defendants’ possession be brought home to the plaintiffs before such possession could be held adverse. Sydnor v. Palmer, 29 Wis. 226. No such acknowledgment appears,' however. On the contrary, all the evidence on the subject indicates that neither the widow nor the present defendants ever knew of the existence of the plaintiffs, and hence never acknowledged that the plaintiffs had any interest in the premises.

Under the circumstances, we deem the evidence sufficient to prove ten years’ adverse possession under a claim of title founded upon a written instrument as being a conveyance of the premises, thus fulfilling the calls of sec. 4211.

By the Court. — Judgment affirmed.