663 P.2d 34 | Or. Ct. App. | 1983
Lead Opinion
This appeal arises out of an action to quiet title. The disputed land, consisting of approximately two and one-half acres, is located as shown in the diagram. The trial
court found that plaintiffs and their predecessors had adversely possessed the land for the requisite period and therefore awarded plaintiffs title. Defendants appeal, and we affirm.
Thomas and Clarissa Hall were the first owners in the chain of title to the land for which plaintiffs have a record title. In 1905, a survey established the boundary between plaintiffs’ and defendants’ land on the line shown on the diagram as the west fence. The fence was constructed by the Halls about that time, apparently in reliance on the survey.
The primary dispute on appeal as presented by the parties revolves around the issue of tacking and the question whether plaintiffs can tack their period of possession to that of their predecessors (including the Sampsons) to make up the ten-year statutory period required to perfect title by adverse possession. The parties agree, however, that during the tenure of the Sampsons from 1948 to 1970 all the requirements for adverse possession were met. Once the Sampsons had held adversely for the requisite period, legal title vested in them by operation of law, even though they took no formal action to obtain a record title. See Spath v. Saks, 70 Or 269, 273, 141 P 160 (1914). Therefore, when they conveyed to the Luckeys in 1970, the Sampsons then owned the disputed tract.
The right of possession of land may be passed orally from one adverse possessor to a successor; but once legal title is established, it can be transferred only by operation of law or by a deed. ORS 93.020. Although the Sampsons did not convey their title to the disputed strip by their 1970 deed and retained legal title to the strip, that benefits defendants not at all, for they and their predecessors in interest had long been deprived of title.
The only possible basis on which to sustain the claim of these defendants is on the effect of the Sampsons’ 1981 quitclaim deed to Mary Baker Wall, who had conveyed her record title to the defendants’ tract to the
It is perfectly clear that defendants and their predecessors in title had lost any claim to the strip by 1948 at the latest, and plaintiffs were entitled to show that in defending their possession against defendants. They would not have had to show a title in themselves for that purpose. It was sufficient to show merely that defendants had no right to possession.
If plaintiffs proved a title by adverse possession in the Sampsons (as they certainly did), that was enough to
Affirmed.
There were numerous transfers of the land between 1933 and 1948 not pertinent to this appeal.
Defendants Hogue brought a third party action against Wall on her warranties. Her theory is that by taking a quitclaim deed from the Sampsons she made good on her warranties by an after-acquired title passing to the defendants. ORS 93.855.
Defendants’ reliance on Du Val v. Miller, 208 Or 176, 181, 300 P2d 416 (1956), is understandable but misplaced. That much-cited opinion, written in the Grand Style that afflicted and still afflicts so much of what passes for legal scholarship, is a horrendous exercise in obfuscation. Suffice it to say that the reason it hqs no application to this case is that the plaintiffs there, claimants to a title by adverse possession as plaintiffs here are, had been ousted of their possession by a defendant who in turn claimed a title by adverse possession; but the defendant also had a record title, as defendants here have. What the case is really about is that the plaintiffs were maintaining an ejectment action on the basis of their having succeeded by a quitclaim deed to an undivided three-quarters interest in the disputed tract from the heirs-at-law of one Duncan, who had acquired a title by adverse possession against Miller and her predecessors in title. In an earlier quiet title action, it had been established that the plaintiffs had no title by adverse possession. Du Val v. Miller, 183 Or 287, 192 P2d 249, 192 P2d 992 (1948). All the two opinions establish is that Miller had no claim to possession against the Du Vais, who had got the right to possess from some of the Duncan heirs, who had a title by adverse possession. The relevance of Du Val to this case is that plaintiffs here can defeat defendants merely on the strength of their predecessors’ title by adverse possession.
Dissenting Opinion
dissenting.
The majority relies on the erroneous assumption that plaintiffs and their immediate predecessors, the Luck-eys, held the disputed land adversely for a sufficient length of time to defeat the claim of the Sampsons, through whom defendants derive their title. For plaintiffs to quiet their title through adverse possession, every element of adverse possession must have been established for ten years before the commencement of this action. Woolfolk v. Isler, 37 Or App 687, 588 P2d 632 (1978); ORS 12.050.
In May, 1981, the Sampsons quitclaimed their interest in the disputed land to Mary Baker Wall, defendant’s predecessor in interest. Wall transferred record title in the disputed land to defendants by warranty deed in 1972. Such a deed conveys the grantor’s entire interest in the described property at the date of the deed and any
*671 “An action for the recovery of real property, or for the recovery of the possession thereof, shall be commenced within 10 years. 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 10 years before the commencement of the action.”
ORS 12.050 provides:
ORS 93.855 provides:
“(1) Special warranty deeds may be in the following form:
_, Grantor, conveys and specially warrants to-, Grantee, the following described real property free of encumbrances created or suffered by the grantor except as specifically set forth herein: (Describe the property conveyed.)
(If there are to be exceptions to the covenants described in this section, here insert such exceptions.)
The true consideration for this conveyance is $--(Here comply with the requirements of ORS 93.030.)
Dated this _ day of-, 19—
“(2) A deed in the form of subsection (1) of this section shall have the same effect as a warranty deed as described in ORS 93.850, except that the covenant of freedom from encumbrances shall be limited to those encumbrances created or suffered by the grantor and the covenant of warranty shall be limited to read: That the grantor warrants and will defend the title to the property against all persons who may lawfully claim the same by, through or under the grantor.
“(3) If the grantor desires to exclude any encumbrances or other interests from the scope of his covenants, such exclusions must be expressly set forth on the deed.”