30 Iowa 480 | Iowa | 1870
Lead Opinion
II. A most able and elaborate argument was made by-appellant’s counsel in this case,, in support of the doctrine that to constitute such adverse possession as would toll the right of entry under our statutes of limitations, the entry upon the land, as well as the subsequent possession, must have been made and continued under color and claim of adverse title; that a tortious entry upon land, and the subsequent acquiring of an adverse title will not toll the right of the true owner, however long the possession may be continued; and it is further claimed in this case, that, as a matter of fact, the ancestor of plaintiffs had no color of title, and made no claim to the land when he made his entry thereon.
We find the fact otherwise, and hence have no occasion to pass upon the legal proposition so ably and fully argued. The only witness who testifies as to the precise time at which the plaintiffs’ ancestor, Jeremy G-. Anderson, entered upon the premises in dispute, says it was “ in the month of October, 1842;” other witnesses indicate generally about the same period, and it appears that the deed for the land, made by Bennett to said Anderson, was made October 7, 1842. The fact that he also obtained another deed or title from his brother, in March, 1843, would not, of course, defeat the color of title given by the first deed under which he entered; Ruddick v. Marshall, 28 Iowa, 487; and further, several witnesses testify to the fact that plaintiffs’ ancestor purchased the- claim or title of one Burtis, whose wife was of Indian descent, a quarter blood, and succeeded to his possession, which certainly was not under nor consistent with the defendants’ title, which, it is not disputed, is the paramount or decree title.
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The suggestion in argument, that Barrett’s tax title was
It follows from these views that the judgments of the district court and of the general term must be
Affirmed.
Rehearing
Opinion on rehearing:
The foregoing opinion was filed at the June term, 1870. A petition for rehearing was afterward submitted by appellant’s counsel, and a rehearing granted. The cause has now been again argued and submitted to the court. It was claimed by counsel for appellant that in the preceding opinion the finding by the court that the plaintiffs’ ancestor had entered into possession of the premises in October, 1842, about the date of the deed by Barrett to him, was in conflict with a fair construction of the plaintiff’s pleadings. "Without conceding or controverting this claim, we proceed to determine the questions made by appellant’s counsel upon his theory of the ease in this regard.
Some statutes of limitation for the recovery of real
Now, our statute of limitations does not require the person in possession to have color of title in order to bar an action by his adverse holding. It is in this respect like the Kentucky statute of twenty years limitation first above referred to. And, like that statute also, it requires that the possession shall be “ taken and held under a hostile
As we understand the argument of the appellant’s counsel he claims that to constitute adverse possession the party must have taken and held possession wider color of tiñe. This is not the law as ruled by this court in the three cases above cited; and we hold, following them, that it is sufficient if such adverse possession 'was taken and held under a claim of title.
Second: There is some evidence tending to show that the plaintiffs’ ancestor, before he entered on the land, acquired a title by purchase from a half-breed; claimant of the land, by the name of Burtis or Burket, —this, however, is slight. But the proof is clear and beyond a doubt, that on the 7th day of October, 1842, the said Anderson acquired a title to the land by purchase from one Barrett, who claimed to own the land by virtue of certain tax sales and deeds to him therefor; and, in March, 1843, one James Anderson conveyed the land to him by deed, in consideration, as alleged, of $1,500. These conveyances were duly acknowledged and recorded. Whether the first of these deeds was, as a matter of fact, made before the plaintiffs’ ancestor took possession of the land conveyed thereby, is in great doubt; the testimony shows that it was made before, and yet in view of the statements of the pleadings, it may be treated as made after the entry. But, as we have before seen, an entry made upon land, even under the title of the owner, may become thereafter adverse to such title and owner. It was said by Savage, Ch. J., in announcing the opinion of the court in Jackson v. Brink, 5 Cow. 483, “ The judge certainly misapplied the rule, that a possession to be adverse must be hostile in its inception. The rule is so laid down in Brandt v. Ogden, 1 Johns. 156, but has often been subsequently qualified, and is understood not to apply to the entry upon the premises; for it has often been decided that a possession taken under the true owner may, by a disclaimer of his
Hence it would follow from any one of the three foregoing propositions, each of which is sufficiently sustained by the evidence, and a fortiori, from all of them, that these plaintiffs have color of title as well as claim of right to the land in controversy ; and that they have had continuous possession for the length of time requisite to bar the action under our statute of limitations is not controverted, but is conceded by appellant’s counsel.
III. It is further 'urged that continuous adverse possession by the plaintiffs, and their peaceable enjoyment of the premises was interrupted by the defendant and those under whom he claims, by asserting their title and by negotiations for the sale of the land to plaintiffs and their ancestor. We have no difficulty in agreeing with appellant’s counsel as to the general propositions of law asserted by him as bearing upon this branch of the ease. But we fail to find any thing in the evidence justifying or authorizing their application to this case. The testimony of one witness, who was a former owner, of his conversations with plaintiffs, while they were minors, about selling his interest to them, or their selling their interest to him, is quite too indefinite and uncertain in itself •, and, besides, it is directly contradicted by at least two witnesses. The same remarks apply equally to the repeated assumptions in the sixty-one pages of printed argument, that plaintiffs and their ancestor did not controvert the defendant’s title or assert their claim as adverse to it.
IY. As to the effect of the judgment for the recovery of the property, had by default at the suit of this defendant as plaintiff, against L. D. Hamilton, who married the
A careful re-examination of the whole case, in the light afforded by an argument evincing great research and ability, we are again brought to the unanimous conclusion that the judgments of the district court and general term must be
Affirmed.