131 Iowa 400 | Iowa | 1906
The property in question is a lot, forty-four feet in width, situated in the city of Waverly, Bremer county, and on November 25, 1881, was owned by one W. F. Barker. On that date Barker conveyed by’deed to L. L. Lush and the intervener, Shepherd, each an undivided one-half. This deed was never recorded and has been lost. In September, 1887, a sheriff’s deed conveying in terms all the right, title, and interest of Lush in and to the property was executed and delivered to plaintiff, Curtis, and this deed was at once recorded. It is the contention of plaintiff that at the time of the sheriff’s deed Lush was in the sole occupancy of the property; that upon receiving his deed, and without knowledge of any rights or interests on the part of intervener, he (plaintiff) entered into sole possession, which he has retained ever since, claiming to be the owner, paying the taxes, and taking the rents and profits; and his demand for a decree as against intervener is predicated upon the assumption that his taking possession amounted to an ouster, which he asserts has been followed by possession adverse to intervener for the statutory period and under claim of title. On the other hand, it is the contention of the intervener that there, was no ouster; that the possession of plaintiff has been that of a tenant in common, and not adverse, with full knowledge of her rights in the premises.
There are cases in which it has been held that, where there has been long-continued and undisturbed occupancy, actual notice of claim of ownership may be given through acts done by the occupying tenant, with the knowledge of his co-tenant,' such as making valuable improvements, retaining all rents and profits, and otherwise treating' the property after the manner which obtains generally in cases where absolute ownership is asserted. And such is the case of Knowles v. Brown, 69 Iowa, 11. But the rule of that and other-like cases is not authority for holding that actual notice may arise from the mere fact that one tenant, with the knowledge of his co-tenant, makes occasional use of the property for storage purposes, and otherwise assumes to rent the same for a nominal rental insufficient in amount to pay the taxes. There is nothing in such conduct to indicate a design to oust the co-tenant of his interest. On the contrary, all may very well have been done by the occupying tenant for the protection of his own interest. Warfield v. Lindell, 30 Mo., 272 (77 Am. Dec. 614); Bader v. Dyer, 106 Iowa, 715; Casey v. Casey, supra. And especially must this be true where, as in this case, the occupying tenant is advised before the period of the statute has run that his co-tenant is claiming ownership, and tacitly, at least, acquiesces therein.
Our conclusion is. that the decree was right, and it is affirmed.