93 Kan. 131 | Kan. | 1914
The opinion of the court was delivered by
The plaintiff sued to quiet title to an 80-acre tract of school land. The defendant interposed a general denial and a cross-petition in ejectment, to ■which the plaintiff replied by setting up the forfeiture :act of 1907 (Gen. Stat. 1909, § 7695) and the statute of limitations. The plaintiff prevailed and the defendant appeals. The plaintiff claims under a second purchaser after the first sale had been canceled. The defendant is the successor in title to T. J. Lewis, who purchased the land in 1882. Default was made in 1889. The record of school-land sales has the entry “Forfeited See Files.” Also a memorandum that a notice to pay up in 30 days was sent to T. J. Lewis January 24, 1895, and that the land'was sold January, 1897. In the files was found a letter from the auditor of state, January 10, 1907, stating that his records showed no forfeiture and requesting a report if there had been a forfeiture. Also a letter of January 29, 1895, from the county clerk to T. J. Lewis or S. D. Chestnut that unless the back interest should be paid up in' 30 days a notice of forfeiture would be placed in the hands of the sheriff. Also a notice of forfeiture addressed to T. J. Lewis and all others in any way interested in the property. The former sheriff testified that the notice came into his hands March 15, 1895, addressed to T. J. Lewis, S. D. Chestnut, Thomas M. Barker, C. E. Barwise, and E. J. Newcomb; that he made personal service on Lewis, the others not being found in the county. He would not say he did not post notices. If the law required it, he did. J. T. Richards testified that he lived within a mile of the land when the sheriff came out to post notices about March, 1895; that the sheriff inquired where Lewis was; that notice was posted on the
Chapter 373 of the Laws of 1907 (Gen. Stat. 1909, §§ 7692-7696) minimizes the strictness required in former acts by making entries upon the record indicating forfeiture prima facie evidence that compliance has been had. Also, that the return of the sheriff shall not be held insufficient because of the omission of any recital required by law, and that a return that service was made by posting a copy of the notice in the office of the county clerk shall be prima facie evidence that persons on whom the notice was served could not be found in the county, and that no one was in possession of the land, and that any statement of such return other than that the notice was posted in such office shall not destroy the prima facie effect unless such additional matter affirmatively shows that legal service was not made. Section 3 (§ 7694) provides that when a purchaser defaulted and abandoned the land and thereafter notice was served by posting a copy in the office of the county clerk and the right and interest of the purchaser was declared forfeited and the land was subsequently sold to a new purchaser by whom or by whose assignee it was taken possession of and improved, such notice shall be held a sufficient notice to the first purchaser of his. default. This section has been held void as beyond the power of the legislature. (Petersilie v. McLachlin, 80 Kan. 176, 101 Pac. 1014; Foster v. Harrington, 80 Kan. 797, 101 Pac. 1013.)
In Jones v. Hickey, 80 Kan. 109, 102 Pac. 247, the plaintiff, after proving a prima facie case, offered in
Richards, under whom the plaintiff claims, testified that he lived within a mile of this land when the sheriff came out to post notices about March, 1895; that he went into possession immediately after the 60 days’ limit after the notices expired May, 1895; that he went on the land in a covered wagon, through a gap in the fence, and built a shack the next day, and lived there until he sold the land, seven years before the trial. “Hustled right over after the 60 days expired. Fence was down. Went right in and built a shack and was living in it the next day. Broke out a little, about five acres, that summer, and put it in millet. Wanted to have it ready to put in in the spring. Did not do anything about getting the title for quite a while after I went on the land. Could not tell how long. After I had been on there a while I circulated petitions to have it put on the market and appraised so I could buy it. Guess December, 1897, is when I proved up on it.”
J. M. Barger testified that when Richards moved on the land in 1895 he, Barger, had it rented from a man
The defendant contends that as the plaintiff’s grantor did not purchase the land until December, 1897, his possession before that time was not adverse or based upon a claim of right in himself, and that mere occupancy without claim of right is not sufficient to start the statute of limitations running.
It is settled that possession to be adverse need not be under color of title (Goodwin v. Nichols, 44 Kan. 22, 23 Pac. 957; Anderson v. Burnham, 52 Kan. 454, 34 Pac. 1056; Guinn v. Spillman, 52 Kan. 496, 35 Pac. 13; Pratt v. Ard, 63 Kan. 182, 65 Pac. 255), but the defendant argues that it is essential that the possession be under claim of right. Claim of right, claim of title, claim of ownership, and hostile possession are different expressions used to indicate the intention of the possessor to appropriate the land to his own use without regard to any claim his rival may advance. It is not necessary that he should expressly declare his intentions, but if the character of his possession is such that a claim of ownership may be inferred therefrom and is open and notorious, it is hostile and under claim of right. Color of title has reference to something which has the appearance or gives the semblance of title but is not such in fact. It has been termed “apparent right.” (Newlin v. Rogers, 6 Kan. App. 910, 51 Pac. 315; 2 Words and Phrases, p. 1264; 1 R. C. U., pp. 703-705, 711; 2 Ene. L. & P., 388-395; 1 Cyc., 1028.)
In Goodwin v. Nichols, 44 Kan. 22, 23 Pac. 957, it was said:
“He entered into possession under a claim of ownership, and not as mortgagee or the trustee of anyone. He continued in the actual, visible and exclusive possession, under claim of title, . . . —a period of nearly 23 years — paying the taxes and making valuable*137 improvements thereon as owner. A title by prescription arises in the adverse occupant at the end of 15 years, if the owner labors under no disability.” (p. 29.)
In Anderson v. Burnham, 52 Kan. 454, 34 Pac. 1056, after referring to the former decisions that a mere trespasser without color or right of title who has been in actual possession for 15 years, claiming the title, becomes the owner by virtue of the statute of limitations, it was said:
“It is the holding of the notorious and exclusive possession of the land in hostility to the rights of the owner which gives the title, and not any mere instrument or paper under which claim is made. The difference between title acquired by adverse occupancy under color of title and without such color is, that under the former the color of title gives character to the possession, and gives rise to the presumption that the claimant intends the entry shall be coextensive with the description in the deed, while under the latter the title will only be coextensive with the actual, visible and continued occupancy.” (p. 460.)
It has been held that possession must be hostile in order to start the statute running. (Dewey v. McLain, 7 Kan. 126, 132; Guilderhaus v. Whiting, 39 Kan. 706, 711, 18 Pac. 916.) In Bird v. Whetstone, 71 Kan. 430, 80 Pac. 942, it was said:
“He entered upon the land with the intention ‘to keep it’ for himself, and the fact that he then had no title or color of title did not prevent him from acquiring the land by adverse possession.” (p. 433.)
See authorities cited in Freeman v. Funk, 85 Kan. 473,117 Pac. 1024.
We agree therefore with the defendant that for the possession to be such as to start the statute running it must be accompanied with a claim of title or ownership as already defined.
It is argued, however, that as the sale had been forfeited and the property belonged to the state when Richards took possession, and in a year or two he entered into a contract with the state for its purchase, his
“And even where the statute does not run against the government, one may acquire rights in public lands by adverse occupancy against all third persons; and this is true even though the claimant admits the government’s ownership; in other words, the claimant’s possession may be adverse without being hostile to the government.” (1 R. C. L. p. 734.)
In Hayes v. Martin, 45 Cal. 559, it was held that one who relies on title or adverse possession of land included in a Mexican grant need not show that he claimed adversely to the United States, but it is sufficient if he claimed adversely to the plaintiff’s title. In Blumer v. Land Co., 129 Iowa, 32, 105 N. W. 342, 113 Am. St. Rep. 444 (affirmed 206 U. S. 482, 27 Sup. Ct. Rep. 769, 51 L. Ed. 1148), a similar conclusion was reached, the question being thus stated:
“In other words, is the claim of right sufficient if against all, save the government, or must the claim be that of entire ownership and therefore against the world?” (p. 37.)
“It purports to exclude every one from its enjoyment, and even as against the government to assert the right to divest its title by compliance with the law.” (p. 40.)
In Maas v. Burdetzke, 93 Minn. 295, 101 N. W. 182, it was held that one who takes possession of land in the erroneous belief that it is public land, with the intention of holding it and claiming it under the homestead law, may acquire title under the law as against the true owner. An analogous decision was rendered in Clemens v. Runckel, 34 Mo. 41, 84 Am. Dec. 69. In Sweeney v. M’Culloch, 3 Watt’s (Pa.) 345, it was held that one who without title or color of title entered upon unseated land which had been surveyed and patented to another, acquired by 21 years’ possession a right only to so much as he actually cultivated or enclosed. In Smith v. Jones, 103 Tex. 632, 132 S. W. 469, 31 L. R. A., n. s., 353, it was decided that the mere fact that one holds land in subordination to the state is not necessarily inconsistent with the conception of holding it in hostility to others if openly disputing their claims of title while the possessor is pursuing a supposed right to acquire title from the state, though a mere holding under the belief that it is the state’s, and with the purpose to acquire it lawfully in the future, does not make the possession hostile to the claim of an owner of whose existence the possessor is ignorant. In Johnson v. Conner, 48 Wash. 431, 93 Pac. 914, it was held that one who enters upon land in good faith supposing it to be government land with a view of acquiring title may upon discovering his mistake proceed to hold adversely to the actual owner so as to acquire title by such possession for 10 years.
The defendant, having together with his grantor been in adverse possession for more than 15 years, was entitled to recover, and for that reason the judgment is affirmed.