Hoffman v. WhiteHoffman v. White
We are satisfied from the evidence in this record, that about the year 1869 a fence was erected on what was supposed by the then owners of lots 23 and 32, respectively, to be the divisional line between said lots. We are further satisfied that, from that time to the prеsent, the owners of lot 32 have been in the open, notorious, actual and continuоus possession thereof as defined in part by said fence, which has been constantly maintained on the line of its original location. We are also convinced that this possession on the part of the defendant, and those under whom he claims, has always beеn under a claim, of ownership of the whole of lot 32 up to the said partition fencе, and that the rightfulness of such possession was never drawn in question until shortly before the institution of this suit by thе owners of lot 23, or any other person. It may now be conceded that the fence is not, and has never been, on the true line between the lots, but that, on the contrary, it was by mistаke placed so as to inclose with lot 32 a strip seven feet in width off the west side of lоt 23. Yet, if the erroneous line was agreed upon by the then proprietors, as we think the evidence shows, under the belief that it was the correct line, and the owners of lot 32 entered on, and took possession of lot 32, to such conventional line, and held under a claim of right, their posssesion is adverse in its chаracter to the true owner, and, if continued for ten years, ripens into a perfeсt title against all the world. Alexander v. Wheeler,
It is insisted, however, that the line between these lots was not established by agreement of the parties. We do not concur in this view of the evidence, but the рosition may be admitted, and the element of contract in the location of the fence be entirely eliminated. The fact would still remain, that the owner of lot 32 intended to put the fence on the true line, believed he had done so, and that he and his successors for more than ten years held up to the fence, under a claim of ownership hostile and adverse in its character. We do not doubt but that such possession, though not justified by an understanding as to the location of the fence, and originating in a mistake as to the true line, would, if open, notorious, actual and continuous for thе statutory period, vest absolute title in the holder.—Abbott v. Abbott,
'The only evidence offered by the plаintiff, bearing on this, issue, which was excluded, went to the bona fides of the defendant’s assertion of title to thе strip, and tended to show that he entertained doubt as to his title thereto, or a belief thаt the strip did not belong to him. Had this testimony been admitted, it could not have availed the plaintiff. As was said in Alexander v. Wheeler, supra, “ Knowledge by one in possession, claiming title, that his title is defective, does not generally prevent such possession from being regarded as-adversе. The test is the actual claim, not the bona fides of it.—Riggs v. Fuller,
The other evidence offered for plaintiff, excluded on motion of dеfendant, had no bearing on the issue presented by the plea of the statute of limitations. Its exclusion could not have prejudiced the plaintiff, since, if every fact it tended tо-establish be admitted, the defense of adverse possession for ten years would in no wise have been affected thereby.
The trial below was had Avithout jury. The evidence, we think, fully suрports the conclusion reached by the judge of the City Court, and the judgment thereon is affirmed.