139 Wis. 281 | Wis. | 1909
Lead Opinion
The following opinion was filed February 16, 1909:
These are assigned as errors:
(1) The court refused to grant a nonsuit, though it appeared that Budzisz was a mere successor to the title of appellant’s tenant Otto;
*292 (2) Parol testimony was allowed, and held sufficient, to-prove the contents of the deed to Budzisz;
(3) Improper evidence was permitted which was prejudicial to appellant;
(4) Evidence offered by appellant was improperly excluded ;
(5) Improper questions were included in the special verdict ;
(6) Erroneous instructions were given to the jury.
Some other errors were assigned, but those stated sufficiently show the claims of appellant as to all matters requiring attention in deciding the appeal.
The entire field covered by the specified claims of appellant has been examined in detail without discovering any but one question which will reasonably bear discussion to any great length.
There have been very many of these cases. In the whole, almost every conceivable question relating to adverse possession and title based thereon has been discussed, elucidated, and decided. It is useless to go over any of them again, any more than incidentally, if at all. When the effect of statutes relating to the title to realty has been definitely judicially declared, the less said on the subject thereafter, by way of re-discussing the matter, the better. Erequent rediscussion of settled principles with new formulations of the legal rules involved, is liable to create confusion where none need, and it is of the utmost importance that none should, exist. Erom new discussions of principles, laid aside as settled, variations are liable to be discovered, leading to new or promoting old litigation, when no variation was intended.
The foregoing preface, perhaps, will be taken as a sufficient excuse, if any were needed, for not treating the numerous detail errors- grouped under the six heads in this opinion, or the groups in detail. Some of the matters discussed are of little moment and some are substantial. None have been over
Unless there is something fatal to the judgment involved in the proposition, the judgment must be affirmed. All questions otherwise, in the opinion of the court, are free from •difficulty and must be resolved in respondents’ favor.
This is the proposition which overshadows all others. The affirmative of it is strenuously contended for by the learned ■counsel for the appellant, while respondents’ counsel just as strenuously contend for the negative. If the former is right the judgment must be reversed. If the latter is right it must be affirmed.
If A., having possession of real estate as tenant of B., the •owner, conveys the same in writing to C., he having no notice -of the relation of landlord and tenant as between A. and B., and C., under his conveyance, takes possession of the prop■erty, claiming title by no right except that purported to be ■conferred by his writing, and he remains in such possession as an exclusive owner might, continuously for the full period •of ten years, — does he thereby acquire title in fact, good as against the former owner B., regardless of the relations existing between the latter and A., at the time he obtained his conveyance ?
The learned counsel for appellant points to sec. 4216, Stats. (1898), providing that “whenever the relation of landlord .and tenant shall have existed between any persons the possession of the tenant shall be deemed the possession of the landlord until the expiration of ten years from the termination of the tenancy,” etc., as if the relation of landlord and tenant, having been created, will continue as to the tenant and his successors in possession till possession shall have been delivered to the one from whom it was first obtained, actually or «constructively. On that Pulford v. Whicher, 16 Wis. 555,
The case cited from our own decisions does not seem to-have the remotest bearing on the proposition to be decided. Possession was obtained of the lessee by fraud, for the very purpose of commencing adverse possession, not under conveyance by the tenant in writing, or really any conveyance by him at all, but under a tax deed and through a fraudulent surrender of the landlord’s possession, in which the one going-out and the one going in participated. Under those circumstances the court, upon equitable considerations, decided that possession of the landlord did not change, but ran against thetas deed, instead of in favor thereof, under the statute of' limitations respecting such deeds.
Whiting v. Edmunds, supra, is no more in point as we view-it. The adverse claimant, as in Pulford v. Whicher, supra, did not enter, or claim possession, under a deed from the tenant. He obtained a spurious deed from a stranger, then obtained possession by obtaining an assignment of the leasehold interest, and entered ostensibly by virtue of such assignment.. That is, he took possession in fact, as successor of the tenant,, and then sought to raise the flag of an adverse possessor, under his spurious deed. How far that is from our proposition, we need not delay to point out. It is too manifest. The-learned court in the discussion, partly obiter, indulged in some remarks, particularly by reference to the ancient case-of Jackson v. Scissam, 3 Johns. 499, which, if authority at-all, would support the appellant’s contention; but it is not. Statutes of limitation with the effect given thereto as in this-state were not referred to or involved. The court formulated the extreme rule adverted to, which, as seen, had nothing to-do with the case, and referred to the ancient case of Jackson v. Scissam, supra, which merely declared and applied a common-law rule.
Sec. 4211 declares, as plainly as by words it could well be done, that if one takes possession of realty, claiming the same under a written instrument, as being a conveyance thereof to him, and exclusive of any other right, he becomes an adverse possessor. It admits of no exception in its letter. This court has said, it admits of no exception by construction; that it was phrased as we find it, in order that it might be understood easily, of all men, as eliminating the ancient doctrine that the person taking possession must do so in good faith.
We said that the question of good faith is not involved under our system, as it was at common law, simply because it is not found in the words of the statute. Lampman v. Van Al
Speaking of the question raised in that case on the subject the court said:
“There is no middle ground that can be resorted to on this subject. Good faith is an essential element of adverse possession under the statutes of limitation, or it is not. The controversy should be tested and determined by the language of the statutes. We do not find it there in any literal expression, — anything to warrant a departure from the plain import of the words used. . . . The statutes of limitation are statutes of repose, and their purpose should not be impaired by injecting into them by judicial construction elements that are not there.”
In that plain language, it would seem, the court declared that our statutes of limitation, appertaining to real estate, are to he administered according to their letter, all common-law features of adverse possession not found therein expressed in such letter, to be regarded as abrogated. That doctrine is now more than twelve years old. It has been iterated and reiterated so many times and so many cases have been ruled by it, that it has become a rule of property, upon which all 'should feel that they may safely depend.
What feature was there that inhered in the doctrine of adverse possession, at the common law, more significant than the one that the entry was required to be characterized by good faith? It was much more significant, we should say, than the one upon which counsel for appellant rely. How •can we say one is not retained, because not found in the letter, •and say, in the same hreath, that the other, not so found, is retained ? How can we solemnly declare, and adhere to the declaration for a long series of years, that all common-law features of adverse possession not found plainly expressed in
The rule adopted here, as stated, has been affirmed in cases too numerous to mention. They have been so significant as to be very familiar. The following are but a very small fraction of them: McCann v. Welch, 106 Wis. 142, 81 N. W. 996; Ill. S. Co. v. Budzisz, 106 Wis. 499, 507-520, 81 N. W. 1027, 82 N. W. 534; Frye v. Highland, 109 Wis. 292, 85 N. W. 351; Ill. S. Co. v. Bilot, 109 Wis. 418, 428-446, 84 N. W. 855, 85 N. W. 402; Pitman v. Hill, 117 Wis. 318, 322, 94 N. W. 40; Ill. S. Co. v. Budzisz, 119 Wis. 580, 97 N. W. 166; Clithero v. Fenner, 122 Wis. 356, 361, 99 N. W. 1027; Reitler v. Lindstrom, 126 Wis. 562, 565, 106 N. W. 388; State v. Lloyd, 133 Wis. 468, 473, 113 N. W. 964; Batz v. Woerpel, 113 Wis. 442, 89 N. W. 516.
Counsel point to decisions elsewhere, using language to the effect that one claiming under another who is but a mere tenant, takes no greater right than the permissive privilege of his grantor, no matter whether he takes knowing the facts or not knowing of them, — not appreciating that such doctrine is based on the supposition that good faith is essential to adverse holding and that bad faith of the grantor necessarily attaches and characterizes the possession of the grantee however remote, — which element of good faith is not required by our statute either in its letter or its spirit.
Many courts have fallen into confusion, as shown in Lampman v. Van Alstyne, 94 Wis. 417, 69 N. W. 171, by tying to decisions based on common-law principles, even where elements, other than those called for by the statutory system, were intended to be excluded, and other decisions in states where such elements, particularly that of good faith, are by plain language retained. When we appreciate the clear pur
We start with sec. 4211, laying down that taking possession under a purported conveyance in writing; anything of the dignity of color of title, claiming as an owner might claim, initiates adverse possession; the raising of the flag of the invader, if the instrument is anything constituting, by common understanding, as laid down in the books, color of title; anything that is a real semblance of paper conveyance, however defective the title in fact, may be. McCann v. Welch, supra; Field v. Columbet, 9 Fed. Cas. 12; Bartlett v. Ambrose, 78 Fed. 839, 843; In re Ah Lee, 5 Fed. 899, 913; Latta v. Clifford, 47 Fed. 614; Aldrich v. Griffith, 66 Vt. 390, 29 Atl. 376.
It was said in McCann v. Welch, supra, by Justice Dodge, speaking for the court:
“Wherever the Wisconsin doctrine is maintained, no paper writing, purporting upon its face to be executed and to convey the land, has been held insufficient to support a claim of title such as may ripen into complete ownership by possession for the statutory period. A deed void upon its face will suffice (McMillan v. Wehle, 55 Wis. 685, 13 N. W. 694; Whittlesey v. Hoppenyan, 72 Wis. 140, 39 N. W. 355) ; a. deed executed by a married woman who has no power to convey (Sanborn v. French, 22 N. H. 246; Perry v. Perry, 99 N. C. 270, 6 S. E. 86); a deed ostensibly by an agent, possessing no authority (Millen v. Stines, 81 Ga. 655, 8 S. E. 315); or signed by one non compos mentis (Ellington v, Ellington, 103 N. C. 54, 9 S. E. 208); or by one having neither title nor possession (Webber v. Clarice, 74 Cal. 11, 15 Pac. 431; Love’s Lessee v. Shields, 3 Yerg. 405); a deed secured by fraud of the grantee (Oliver v. Pullman, 24 Fed. 127). . . . The underlying idea of this statute is not reward to the diligent trespasser, but rather of penalty upon the negligent and dormant owner, who allows another for many years to ex*299 ercise acts of possession over bis property. The time necessary to render such occupancy effective under a deed is shortened, not in recognition of a good-faith claim by the occupant, but in recognition of the notice to the owner of the adversary character of that occupancy. .... The purpose of' the statute is not to benefit him who fraudulently obtains such a conveyance, but to deny the use of the courts to him who-negligently sleeps on his rights. The requirement of good faith in few cases supporting it is in disregard or forgetfulness of the real purpose of statutes of adverse possession.”' 106 Wis. at pp. 147, 148 (81 N. W. 997, 998).
This entirely eliminates from our consideration the idea that adverse possession cannot be initiated without some claim of actual title grounded on facts which, whether known or not, would give rise reasonably thereto.
Having fixed the point of commencement, as aforesaid, in the light of the written law; that it is determinable solely thereby, and that the character of the instrument is the deciding factor (Watts v. Owens, 62 Wis. 512, 22 N. W. 720), we pass to the next point, fully and plainly covered as before by see. 4215.
An adverse possession, commencing as indicated, and continuing without interruption for the full period of ten years,, bars “an action for the recovery of such real estate so held adversely or of the possession thereof.” Or, in other words,, creates title in fact.
That is rounded out by the plain statute, sec. 4210, changing, radically, the common-law rule that, possession by one,, not having title in fact, is presumed, unless shown, clearly and satisfactorily, to the contrary by evidence of the nature-of the entry as well as of the continuation of the possession, to be in subordination to the legal title, — so that, in case of possession being in one, as it might be in the true owner, for the full statutory period, the presumption arises, that it commenced with all the statutory essentials of adverse entry and likewise continued, efficiently extinguishing the original title;
That makes a complete code of written law, easily undcr•stood, and abrogates all rules inconsistent with it, and plainly the rule, so far as it ever existed in fact, that a conveyance by one having a permissive right, such as a tenant, does not ■furnish a legitimate basis for the incidents of adverse possession.
The significance of this statutory displacement of the common-law presumption, if not fully appreciated in the early •days of our system of adverse possession, wholly governed by written law, has been fully- vindicated in recent years, as will be seen by the decisions we have referred to, particularly McCann v. Welch, 106 Wis. 142, 81 N. W. 996; Pitman v. Hill, 117 Wis. 318, 323, 94 N. W. 40; Wilkins v. Nicolai, 99 Wis. 178, 74 N. W. 103; Wollman v. Ruehle, 100 Wis. 31, 35, 75 N. W. 425; Ill. S. Co. v. Bilot, 109 Wis. 418, 440, 84 N. W. 855, 85 N. W. 402.
So we find that the doctrine of title by right of conquest alone, provided for by statute at all points, harsh though it may seem, in an instance now and then, is, in general, grounded on sound public policy and is well established as a rule of property by our written and our unwritten law.
If one raises the flag of the invader, grounded on mere color of title, regardless of right or claim of right in fact, and keeps that flag flying without interruption, in view and defiance of all men, for the full period required, he thereby acquires all the right of a conqueror, who often obtains his right, so called, by force.
It is needless to refer at length to decisions elsewhere whether in or out of harmony with the foregoing, though the
In Bradt v. Church, 110 N. Y. 537, 18 N. E. 357, the New York court charged the alleged adverse possessor with the characteristics of his grantor’s right, in that it was that of a tenant, because he entered under a quitclaim deed from saach tenant, though it was confessed he was ignoraait, in fact, of such grantor’s relation to the real owner. The turning point seems to have been the character of the conveyance as-indicated. To that there is an able dissenting opinion by Mr. Justice Earl, in the course of which it is said:
“Can it be the law that when a lease has once been executed all persons thereafter found in the adverse possessioaa of the-land must be presumed to be in under the lease ? There is-absolutely no case holding or hinting at such a doctrine. It. is not found in the cases of Jackson v. Davis, 5 Cow. 123, and Jackson v. Harsen, 7 Cow. 323. In each of those cases-the party in possession claimed -under or from the lessee.”
There was no question in that case but that the persons claiming by the right of adverse possession based such right on a deed from a tenant of the true owner. That was supposed by the court to make him, necessarily, a claimant under the lessor, notwithstanding it appeared that he took, not as such, but as grantee, on the face of things, of the title. Justice Earl argued that actual taking as tenant was essential to connect the alleged adverse possessor with the tenant. Eeferring to the cited cases he said:
“In each of those cases the party in possession claimed un- • der or from the lessee, and it was held that he took the position of the lessee, and could not, therefore, dispute the title of' the landlord or set up adverse possession against him. But they are far from holding that the relation of landlord and tenant may be presumed without any proof, and thus what would otherwise be an adverse possession be defeated.” -
“Where one enters without knowledge of the tenancy, and irrespective of it, in the assertion of a title on its face adverse •to the lessor, though derived, as here, from the tenant, his possession will be hostile, if unequivocal acts and declarations manifest an intention to hold in despite of all others. . . . Of the facts that have been recognized as indicative of hostile intent, none are perhaps more decisive than the exhibition •of a paper title, independent of that residing in the original •owner, by color of which the party justifies his entry.”
That language was based on the situation that the adverse possessor took possession under a deed and circumstances •showing assertion of title of record.
That is to say the doctrine upon which counsel relies ■does not apply without specific proof that the hostile claimant took possession by virtue of the tenancy instead of in ignorance and repudiation of it.
It seems useless to pursue the matter further.
The opinion of the court is that the case is ruled by the letter of the statute in favor of the affirmative of the proposition presented, which we have fully discussed, and which, as we have seen, is the only one advanced by appellant to defeat the judgment deemed to be sufficient as to doubt and difficulty to warrant special treatment thereof.
By the Court. — Judgment affirmed.
The following opinion was filed February 23, 1909:
Dissenting Opinion
(dissenting). The importance and the far-reaching effect of the rule of law declared in the opinion of the majority of the court impels me to express my views more at length than would ordinarily be excusable in a dissenting •opinion. I think that'opinion places a premium on piracy, ¡not warranted by the statute, not sanctioned by the former
1. The general rule of law that all persons claiming under a tenant and deriving their possession from him, however remotely, are precluded from relying upon their possession for the purpose of barring the title of the landlord, is one upon which there is little variance of authorities. The cases holding that the landlord may not be disseised by a tenant, nr by one claiming possession under a tenant, are numerous, and are collected in 1 Am. & Eng. Ency. of Law (2d ed.) ■811, and in 1 Cyc. 1062. The immediate question here is whether the general rule is applicable where a third party secures a conveyance, purporting to convey the fee, from the tenant in possession, believing him to be the owner of the land, and in good faith enters into possession by virtue of his deed from the tenant.
In Emerick v. Tavener, 9 Grat. 220, 58 Am. Dec. 217, the ■court held that, though a party purchase and enter upon premises under an absolute conveyance, “he still, in judgment ■of law, is deemed to have entered as the tenant of the landlord, and to hold the possession subject to all the duties and responsibilities pertaining to that character.” The opinion in this case is cited with approval in the case of Pulford v.
“When once this relation of landlord and tenant is established by the act of the parties, it attaches to all who may succeed to the possession through or under the tenant, whether immediately or remotely; the succeeding tenant being as-much bound by the acts and admissions of his predecessor as-if they were his own.”
It can be fairly said that the doctrine of Emerick v. Tavener is approved in the Pulford Case. It can also be said,, as is intimated in the opinion of the court in this case, that'it was not necessary to a decision of the Pulford Case that the court should decide any question not immediately involved, and that the question there was whether, where there-was fraudulent collusion between the tenant and the alleged adverse occupant, by reason of which possession was surrendered to the latter, his possession became adverse to the true-owner or he became merely the tenant of such owner. ThePulford Case has at least the merit of involving the relation between the landowner and the successor to the possession-held by the tenant, and the discussion, while taking a somewhat wider range than was essential, was not necessarily obiter. If that case cannot be considered as authority in the-instant case, what should be said of the cases cited in the-opinion in support of the proposition that the question here-involved has been set at rest by former decisions? Not a single one of them involved the relation of landlord and tenant directly or remotely. General expressions are used to-show the application of the statute to the facts in the case under consideration. Now these sweeping expressions are-used to fit the facts in any case that may arise. It is said in the opinion here that if one raises the flag of the invader under color of title, and keeps it flying for the statutory period in defiance of all men, he acquires the right of a conqueror, or, in other words, becomes the owner of the property.
“Whenever the relation of landlord and tenant shall have existed between any persons the possession of the tenant shall be deemed the possession of the landlord until the expiration of ten years from the termination of the tenancy,” in the case of a written lease.
The only material difference between our statute and that of New York is that in New York the occupancy must continue twenty years after the termination of the written lease before the possession of the tenant ceases to be that of the landlord, while in our state the prescribed period is ten years. Our statute is in fact borrowed from New York, although the New York law was modified in the manner suggested. The
In Bedlow v. New York F. D. D. Co. 112 N. Y. 263, 287, 19 N. E. 800, 811, the court said:
“Where the relation of landlord and tenant has been once established, the possession of the latter and that of his grantees and assignees is the possession of the landlord, and not hostile or adverse; and this is true even where the grantee has taken a deed of the fee in ignorance of the fact that his grantor stood in the relation of a tenant, the latter denying any such relation.”
In Church v. Schoonmaker, 115 N. Y. 570, 571, 579, 22 N. E. 575, the defendant purchased land in good faith'under warranty deéd from a tenant in possession, believing him to be the owner, and it was held that until the statutory period of time had expired a purchaser under a warranty deed did not hold adversely to the landlord, and that his possession was that of a tenant to all intents and purposes.
In Whiting v. Edmunds, 94 N. Y. 309, 314, the court said:
“Where the relation of landlord and tenant has been once established, the possession of the latter and that of his grantees and assignees is the possession of the landlord, and not hostile or adverse; and this is true even where the grantee has taken a deed of the fee in ignorance of the fact that his grantor stood in the relation of a tenant.”
There are numerous other New York cases holding likewise, among which might be cited Jackson v. Davis, 5 Cow. 123, 130; Jackson v. Harsen, 7 Cow. 323, 325; Tompkins v. Snow, 63 Barb. 525, 533; Bands v. Hughes, 53 N. Y. 287, 297; Jackson v. Scissam, 3 Johns. 499; Bradt v. Church, 110 N. Y. 537, 18 N. E. 357.
'It is said that under sec. 4211 of our statutes as construed
In Phillips v. Rothwell, 4 Bibb, 33, it was held that one who enters upon land as a tenant cannot controvert the title of his landlord, and if a tenant make a deed of bargain and sale to another in fee, the alienee would be in no better condition than the tenant and could not controvert the title by which the tenant entered.
In Cooper v. Smith, 8 Watts, 536, 539, 540, the court said:
“It is obvious that the title of a landlord to real estate, though perfectly good and indefeasible, would frequently be rendered the next thing to worthless, if his tenants, or third persons prevailing upon tenants to let them into possession, were permitted to call his title in question, and to make him show that it was better than any other to the land before they should be compelled to surrender the possession of it to him.”
In Barker v. Gustin, 12 N. J. Law, 42, 48, it is held that Where a third party enters into the possession of land with the consent of the tenant in possession, no matter how obtained, such person takes only the possession of the tenant
In Society, etc. v. Sharon, 28 Vt. 603, 613, the court said:
“A tenant may repudiate his tenancy, and claim adverse in his own right against his landlord, and the statute will commence running against the landlord from the time he has-notice of such repudiation of the tenancy.”
The giving of a deed of the premises by the tenant in possession to a third party is held to be an unequivocal repudiation of the tenancy, but that the statute would not begin to-run until the landlord had notice of the giving of such deed.
In Swann v. Thayer, 36 W. Va. 46, 14 S. E. 423, the court held that any instrument, however defective or imperfect, purporting to convey title of lands, which defines the extent of the claim under it, is color of title; that where a tenant accepts a deed from another, purporting to convey tollina the land in fee, and later conveys it in fee to another, and both he and his alienee claim the land in their own right under such conveyance, and the landlord has knowledge of such conveyance and claim, possession by such tenant and his alienee after such knowledge on the part of the landlord for the period fixed by the statute of limitations will be adversary, .and will bar the landlord’s right. To the same effect is Swann v. Young, 36 W. Va. 57, 14 S. E. 426.
In Campbell v. Shipley, 41 Md. 81, 96, it is said:
“Not only is the tenant precluded from relying on his possession to bar his landlord, but also all persons who come in under, or derive possession from, the tenant in any manner, however remotely.”
And in Ehrman v. Mayer, 57 Md. 612, 624, the following is added to the foregoing quotation:
“In such cases possession is presumed to be in accordance-with the title, and this presumption will hold until some notorious and unequivocal act of exclusion shall have occurred.”'
, I have been unable to find any well-considered case, except .Diheman v. Parrish, 6 Pa. St. 210, approved in Toivnsend v. Boyd, 217 Pa. St. 386, 395, 66 Atl. 1099, which holds that the purchaser from a tenant in possession who succeeds to the possession of snch tenant holds adversely to the landlord. The possession that is surrendered to him is the possession of the tenant. Erom the nature of the relation existing between the landlord and the tenant, that possession cannot be adverse during the continuance of the lease or for ten years thereafter; at least not without some repudiation of the relation of landlord and tenant by the party in possession, of which the landlord has notice. The question- is exceedingly important and may often involve valuable property rights. If a tenant who is let into possession of property hy the owner for a nominal consideration may the day following convey such property to a party who knows, or ought to know, that he has no title, and such grantee hy entering into possession can at the end of ten years assert absolute title to the property, much fraud and injustice may be practiced. The question here presented simply is: Did the defendant enter into possession of the premises in dispute under color of title, or did he secure the possession of the lessee only ? If the former is true, his possession is adverse. If the latter is true,’his possession is simply the possession of the landlord. I think
It was argued in the instant case that it does not fall within the general rule, however, because in this instance Otto was in possession of the premises at the time he leased the same from the North Chicago Rolling Mill Company. The California authorities certainly sustain this contention, and hold that under such circumstances a tenant in possession can show a paramount outstanding title either in himself or in a third party and thus defeat the action of ejectment. Tewksbury v. Magraff, 33 Cal. 237, 245; Franklin v. Merida, 35 Cal. 558, 571, 575; Johnson v. Chely, 43 Cal. 299, 305; Peralta v. Ginochio, 47 Cal. 459, 460. There are also numerous cases holding that, where a lease is obtained from a party in possession by fraud or misrepresentation, the party signing the same is not estopped from denying the landlord’s title. That question, however, is not involved in this case. The rule of the California court is at variance with the decisions of most of the courts of this country, as will be seen from an examination of the following authorities: 18 Am. & Eng. Ency. of Law (2d ed.) 415; 24 Cyc. 938; Killoren v. Murtaugh, 64 N. H. 51, 5 Atl. 769; School Dist. v. Long (Pa.) 10 Atl. 769; People's L. & B. Asso. v. Whitmore, 75 Me. 117; Wallace v. Ocean Grove C. M. Asso. 148 Fed. 672, 78 C. C. A. 406; Jones, Landl. & T. § 697; Jones v. Reilly, 174 N. Y. 97, 66 N. E. 649; Dixon v. Stewart, 113 N. C. 410, 414, 18 S. E. 325; Willis v. Harrell, 118 Ga. 906, 45 S. E. 794;
2. The Otto lease was made July 1,1887, for the period of five years. Either party might terminate it by giving the other six months’ notice of intention so to do. It contained no prohibition against Otto’s selling the interest he acquired thereunder, and provided that the annual rental of the parcel of land described therein should be $3 per annum, payable in advance. After the making of this lease the plaintiff had no immediate right of action against any one to recover the possession of the demised premises. The lease might be terminated, but only on six months’ notice, and of course the lessor was under no obligation to give such notice. In the event of a default in payment of rent the landlord might oust the occupant, but this he was not obliged to do, and could not do without first giving notice to quit. As was said in Mash v. Bloom, 133 Wis. 646, 649, 114 N. W. 457, 459:
“There could have been no wrongful withholding of the premises until the plaintiff elected to take advantage of condition broken and so notified the defendant, either by demand*312 of possession, or some other act equivalent to a re-entry for condition broken. Until this was done no right of action to recover possession of the premises existed.”
1 The plaintiff in an action of ejectment must be entitled to the possession of the premises at the time the action is commenced. M. E. Church v. N. P. R. Co. 78 Wis. 131, 47 N. W. 190. The plaintiff was not entitled to the possession of the premises during the life of the lease, unless some condition thereof was broken and the lessor elected to take advantage of it, or unless the notice of termination provided for in the lease was given. The conveyance testified to as having been made from Otto to defendant, if it conveyed anything, carried Otto’s possession, right of possession, and leasehold interest to the defendant, and would defeat any. action brought by plaintiff to recover the property during the life of the lease, or until there had been a default in complying with its conditions and the same had been taken advantage of in the usual way. The landlord, not being entitled to the premises, could not bring ejectment until after the end of the term. Johnson v. Gurley, 52 Tex. 222; Dennison v. Read, 3 Dana, 586; Fox v. Brissac, 15 Cal. 223; Van Rensselaer v. Jewett, 2 N. Y. 141; Sedg. & W. Trial of Title, § 350, and cases cited.
3. The deed from Otto to Budzisz was not produced. The evidence tending to show its contents was so unsatisfactory that I feel disposed to say that it did not carry color of title. It was written by Mrs. Otto. Its contents were translated by her into German for one Kolp, who is the only witness sworn on the trial who assumes to remember what the document contained. According to his evidence the deed contained substantially the following:
“This property to August Budzisz, the ground, house, and all, and both signatures was below, he and she, Mrs. Otto. . . . Everything that is Erank Otto’s to August Budzisz. . . . This house and the lot, the fence, and everything what was in the fence.”
“Statutes of this nature, which operate in restraint of the true title, or to make a certain kind of possession effectual for that purpose, if they are not to be construed strictly, yet ought not to be construed so liberally as to include within them any case not fairly within the words.” Sydnor v. Palmer, 29 Wis. 226, 253.
- This court, perhaps, has gone as far as. any other in admitting parol testimony to clear up ambiguities in written instrument's intended to convey an interest in lands. The law will not declare an agreement void, however uncertain, when light which contemporaneous facts and circumstances furnish renders the description definite and certain. A description which can be made certain by proof of an existing fact referred to in the agreement is regarded as sufficiently certain to enforce specific performance, and a deed of a description otherwise uncertain should be construed with reference to the actual rightful state of the property at the time of the execution of such deed. Messer v. Oestreich, 52 Wis. 684, 689, 10 N. W. 6; Whitney v. Robinson, 53 Wis. 309, 314, 10 N. W. 512; Docter v. Hellberg, 65 Wis. 415, 27 N. W. 176; Simmons v. Johnson, 14 Wis. 523, 526; Mills v. C. & N. W. R. Go. 103 Wis. 192, 79 N. W. 245; Hanley v. Kraftczyk, 119 Wis. 352, 96 N. W. 820. And it has been held that a description in a complaint in ejectment is sufficient, if, by the aid of a surveyor and a person knowing the monuments and boundaries therein mentioned, the land can be found. Off v. Heinrichs, 124 Wis. 440, 102 N. W. 904.
These authorities deal with the construction which should be placed on such instrument in controversies arising between the parties thereto or those in privity with them, and hardly reach the question here involved. A party in adverse possession for twenty years without color of title acquires title to land. By means of an instrument conveying the land, coupled with adverse possession, the necessary period of ad
, 4. I also think the court committed prejudicial and reversible error in not permitting plaintiff to cross-examine the defendant in reference to statements made by him which tended to show that he was not in fact in possession of the premises-under his alleged color of title for the statutory period.
The following opinion was filed May 11, 1909:
Notwithstanding the very able and exhaustive argument for a rehearing filed by appellant’s attorneys, after a careful review thereof it is the opinion of the
The difficulty with counsel’s argument is that it is based on a multitude of authorities, ancient and modern, largely the former, which, with numerous others that might be referred to, constitute about as hopeless a state of confusion, especially when differing statutory regulations are not taken account of, respecting the law of adverse possession as could well be. That was appreciated by our early workers in the field of constructive legislation, and for the purpose of making a plain, workable, just code of written law to be referred to as a certain test of rights and remedies relative to titles to realtyj our statutes, as we now find them, were adopted more than half a century ago and have been, as a rule, closely adhered to. Such being the case, what a waste of time, energy, and public and private expense it is to pin one’s faith to the very confused state of things such statutes were designed to supersede and endeavor to engraft some part of the displaced old system upon the new one.
There are numberless cases and many text-books declaring that no lessee or person claiming under him can impeach the right or title of the lessor, which is all right as a general proposition. But whether the term “claiming under him” is to be considered in the sense of claiming under him as sub-lessee only, or that and claiming as owner as well, and if the latter, whether it includes a claimant, as owner, without notice or reasonable means of notice of the limited right of the intermediate possessor, and means that a person in possession as lessee cannot, under any circumstances, without prior restitution, turn permissive into adverse possession and that his grantee of the property, in form in fee, cannot do it, whether he takes with notice of the actual state of the title or without such notice or negligence in the matter, — whether
Can it be wondered at that our lawgivers made an effort to rescue the law which had fallen into such distressing confusion, by the actions of courts and treatment of commentators, and differing statutory regulations, by condemning the system to oblivion and erecting in its stead a simple code of written laws ? They having attempted to do that, as all must admit they did, how unfortunate it would be if the persistence of counsel, from time to time, in holding up to view some part of the displaced system with a great array of authorities, many of which have no application by reason of statutory bases, as governing some particular supposed distressing situation, were permitted to prevail, either by reason of mistaken notion that our statutes are not exclusive and to be enforced just as we find them, but are merely supplementary to-old principles and to be administered so as to harmonize with adjudications elsewhere — following common-law rules, or statutes differing from ours, or similar statutes which have
The principle of the doctrine that neither a tenant nor a person claiming under him can set up adverse possession .against the landlord, applies to a mortgagor and mortgagee, •vendor and vendee under a land contract, and others where the possession of one is obtained under an obligation to return it to its source. But all these situations are covered by the letter of the statute that, “where the occupant or those under •whom he claims entered into the possession of any premises under claim of title, exclusive of any other right, founding such claim upon some written instrument, as being a conveyance of the premises in question, . . . and that there has been a continued occupation and possession of the premises included in such instrument ... or some part of such premises under such claim for ten years, the premises so claimed ■shall be deemed to have been held adversely,” etc. No element of good faith is required because that element in the •former law was omitted. The elimination of that, eliminated the basic feature — the foundation of the equitable estoppel, which is the key to the principle for which counsel contend .and which is without force any way and has been abandoned .in many jurisdictions, as we shall see, where the grantee from
The doctrine of tacking, which cut so important a figure in the early litigation in these Illinois Steel Company cases— the doctrine that any kind of a conveyance, so long as it purports to convey title absolutely, satisfies the rule for color of title; the doctrine that good faith or bad faith in taking or holding possession is immaterial, it being.understood that all supposed features of the law as it existed at the origin of the statute not found therein are regarded as abrogated; the doctrine that actual possession of part draws to it possession of the balance, within the calls of the deed, and the doctrine that actual, continuous, notorious, hostile possession for the statutory period supersedes the presumption of possession in the holder of the legal title and creates a presumption of hostile possession with all the essentials of title by conquest, as embodied in the quoted language and that of associate sections,— is as plain as English words can make it. All that which is embodied in the statute is the law and a rule of property. All not there, and which is in conflict therewith, is not the law. All efforts to engraft upon the statutes exceptions not made by statute, and all efforts to dignify authorities elsewhere, inconsistent with our system, must fail notwithstanding the particularity of any particular situation. Importance of adhering strictly to our statutes and the logic of our decisions will appear by the following:
Counsel refer to Newell on Ejectment at page ’602, to the effect that a tenant is estopped from denying his landlord’s title and that the former’s assignee is likewise estopped, which, as said before, is all right as a general rule, but it is highly misleading if taken literally as to all situations and as a legal estoppel. The author cites O’Brien v. Wetherell, 14 Kan. 616, and Raley v. Boss, 59 Ga. 862. The first case is to the effect that where title is conveyed to a person upon con
Counsel also refer to Jones on Landlord & Tenant to tbe effect tbat “tbe estoppel wbicb binds a tenant against denying tbe title of bis landlord is equally binding on one to whom tbe tenant has conveyed tbe premises in fee.” Sec. 699. True, till tbe relation has been superseded by lapse of tbe period of adverse possession. The text is not inconsistent with tbe idea tbat if a person tabes from a tenant a fee, in form, and takes possession as owner, notoriously in hostility to tbe true owner, be thereby initiates adverse possession. Tbe author cites Emerick v. Tavener, 9 Grat. 220. Tbe case is grounded on ancient authorities while recognizing tbe claim tbat tbe estoppel rests on a rebuttable presumption wbicb is displaced by proof of taking possession as owner under a deed from tbe tenant purporting to convey a fee and circumstances characterizing tbe same operating as a disseisin. Tbe idea tbat there is a legal estoppel in sucb cases instead of a mere rebuttable presumption has been repudiated in many cases, especially in recent years. We refer to tbe following: Dikeman v. Parrish, 6 Pa. St. 210, 225; Townsend v. Boyd, 217 Pa. St. 386, 395, 66 Atl. 1099; McDougald v. Reedy, 71 Ga. 750; Sherman v. Champlain T. Co. 31 Vt. 162, 177; Bradt
Counsel further refer to the text in Jones on Landlord & Tenant, to the effect that possession under a deed from a tenant purporting to convey the fee does not displace the estoppel in favor of the landlord even if the grantee takes possession without knowledge of the former’s right. The text is based on the early cases of Reed v. Shepley, 6 Vt. 602, and Greeno v. Munson, 9 Vt. 37. Referring to such cases we find they are in conflict with numerous other and more modern cases we have cited and are not based on any statute and do not recognize any modification of the ancient doctrine repudiated in Bradstreet v. Huntington, supra, and other cases, and that they were practically overruled by Sherman v. Champlain T. Co., supra, opinion by Redeield, C. J., where it is said that the tenant by notice that he no longer holds under the landlord commits a disseisin, turning the permissive to an adverse possession, which if continued for the statutory period will ripen into a title in the possessor’s own right, referring to the federal doctrine announced in Willison v. Wathins, 3 Pet. 43, 48, and recognizing that “it is undoubtedly a new doctrine, and adopted here from a regard to the difference in our land tenures, and in our civil and social relations and institutions in many respects, from those in England.”
Referring to the cited cases and others it will be seen that unequivocal disapproval of the tenancy relation, such as deeding the property as owner to another who notoriously takes possession and claims as owner, is all the notice required.
We might go on, step by step, through all of counsel’s citations with the same result as indicated thus far. All the numerous cases we have cited repudiate or explain and modify the ancient doctrine, sanctioned by many authorities, cited to our attention, that the possession of a tenant cannot be turned into an adverse possession either in himself or his sue
In Bradstreet v. Huntington, 5 Pet. 402, 439, the federal supreme court, reaffirming a statement in Society, etc. v. Pawlet, 4 Pet. 480, said:
“A possession may be adverse, wherever an ouster may be presumed. .■ . It may be adverse, and maintain a bar under tbe statute, even where ouster is in terms repelled, and not to be presumed from tbe very circumstances of tbe case. Tbe words of tbe court are: ‘A vendee in fee derives bis title from tbe vendor; but bis title, though derivative, is adverse to that of tbe vendor. lie enters and bolds possession for himself, and not for tbe vendor. Such was tbe doctrine of this court in Blight’s Lessee v. Rochester, 7 Wheat. 535.’ If this be tbe correct doctrine of this court, and there can be no doubt it is, it seems to follow that wherever tbe proof is, that one in possession bolds for himself, to tbe exclusion of all others, tbe possession so held must be adverse to all others, whatever relation in point of interest or privity be may stand in to others. Such certainly is tbe view taken of tbe law in tbe reasoning of this court in tbe case of Willison v. Watkins, 3 Pet. 43, 53, and with express reference to lessors, mortgagors, trustees, and tenants in common.”
We recognize that some of tbe authorities are to tbe effect that neither a tenant nor any one claiming under him can initiate adverse possession without at least doing something equivalent to a surrender of possession, as by an unqualified denial of tbe right of tbe landlord and bringing home to him knowledge of tbe adverse claim- — giving actual efficient notice of it, — but that is repudiated or explained in other jurisdictions, it being held sufficient if tbe facts are such as to indicate, circumstantially, with reasonable clearness to tbe true owner that bis right is denied and that tbe person in possession claims as owner. This, or its equivalent, is found in many cases:
Where one enters as owner “without knowledge of tbe tenancy” asserting “title on its face adverse to tbe lessor, though derived from tbe tenant, bis possession will be hostile, if un
That is the doctrine of this court plainly declared in Stevens v. Brooks, 24 Wis. 326, as will be seen later.
The idea indulged in that there is something particularly sacred in the relation of landlord and tenant, and that a tenant or person claiming under him by deed, who actually and notoriously asserts title in himself, is not entitled to the same protection as any other adverse possessor, in case the true owner sleeps upon his rights for the full statutory period, was repudiated by the supreme court of the United States in the leading case of Willison v. Watkins, 3 Pet. 43, 53, this language being used:
“The relations created by a lease are not more sacred than those of a trust or mortgage. ... If he suffers the tenant to retain possession twenty years after a tenancy is disavowed, and cannot account for his delay in bringing his suit, why should he be exempted from the operation of the statute more than the mortgagor or the mortgagee ? We can perceive no good reasons for allowing this peculiar and exclusive privilege to a Ibssor. ... In the case in 1 Nott & McC. 374 [Wilson ads. Weatherhyl, the court decide that, where a defendant enters under a plaintiff, he shall not dispute his title while he remains in possession, and that he must first give up his possession, and bring his suit to try titles. To the correctness of this principle we yield our assent, not as one professing to be peculiar to South Carolina, but as a rule of 'the common law applicable to the cases of fiduciary possession before noticed. It is laid down as a general rule, embracing in terms tenants in common, trustees, mortgagees, and lessees, but disallowing none of the exceptions or limitations which qualify it and exclude from its operation all cases where the possession has become adverse, where the party entitled to it does not enter or sue within the time of the statute of limitations, or give any good reason for his delay; leaving the rule in full*331 force wherever the suit is brought within the time prescribed by law. To this extent, and this only, the decision would reach. ... In relation to the limitation of actions for the recovery of real property, we think . . . that the statute ought to receive such a construction as will effectuate the beneficent objects which it is intended to accomplish — the security of titles and the quieting of possessions.”
Thus it will be seen full effect was given to the common-law principle incorporated into our statutes at sec. 4216,. modified by restricting the former unlimited presumption, as to time, to a period of ten years, that “the relation of landlord and tenant” being once established “the possession of the tenant shall be deemed the possession of the landlord until the expiration of ten years from the termination of the tenancy,” or in case of the relation not being evidenced by a written lease, “until the expiration of ten years from the time of the last payment of rent.” This significant element, not to be overlooked, was added: “notwithstanding such tenant may . . . have claimed to hold adversely to his landlord; but such presumption shall not be made after the periods herein limited.”
That statute was borrowed from New York. It is recognized there that the presumption in favor of the lessor is not a legal estoppel or conclusive. In Bradt v. Church, 110 N. Y. 537, 18 N. E. 357, and Bedlow v. New York F. D. D. Co. 112 N. Y. 263, 19 N. E. 800, cited in the former opinion, it was expressly held that it would yield to proof of actual, notorious possession for the statutory terms in defiance of the landlord’s title, in harmony with other cases, particularly Willison v. Watkins, 3 Pet. 43, to the effect that proof of actual, notorious, hostile possession for the statutory period, characterized by unequivocal, open, notorious treatment of the property as owner, displaces the statutory the same as it does the common-law presumption which it declares so far as the lawgivers saw fit to adopt it. That is in harmony with sec. 4210, Stats. (1898), which did not exist in New York
It must be remembered that the doctrine in New York, at the time many of the decisions called to our attention were made, was that there must be a taking of possession in honest 'belief of its being rightful and reliance thereon. Jackson v. Andrews, 7 Wend. 152; Livingston v. Peru Iron Co. 9 Wend. 511; Clapp v. Bromagham, 9 Cow. 530, 557. That was later repudiated and held to be inconsistent with the statutes. The court in Humbert v. Trinity Church, 21 Wend. 587, 608, speaking by Cowen, J., said:
“Statutes limiting real actions generally operate in favor ■of the men who cultivate the soil, or inhabit the dwelling houses of the country; and cannot discriminate between the rich and the poor, the powerful and the weak, the wise and "the ignorant.” They were “framed on the most salutary principle of general policy. They have, with great propriety, been termed statutes of repose. They fix a term broadly marked and easy of proof, at which litigation is arrested ; beyond which every man is enabled to pronounce that his possessions are no longer open to disturbance. . . . Neither open wrong nor established fraud” can “be admitted .as an exception without striking at the principle itself; neither can be received without proof, and that would bring back the very danger which the statutes were designed to -obviate. ... In the previous case of Jackson v. Andrews, 7 Wend. 152, even actual possession claimed under a deed was denied to be adverse for the purpose of disqualifying the real -owner to convey, though clearly” by later adjudications “that would not be so of a deed invoked to make out a possession within the statutes of limitations. . . . The question is on the quo animo, the intent; not, I take it, as suggested in Livingston v. Peru Iron Co. 9 Wend. 511, the intent to claim honestly; but the intent to claim at all, right or wrong, with -or without knowledge that another has title.” After the lapse ■of the statutory period “it would be dangerous to open an inquiry upon the bona fides of the defendant’s claim.”
It must follow from what has been said, regardless of apparently conflicting authorities, that, by statute, if a person under any kind of a written instrument sufficient to convey title to realty and purporting to do so takes possession of a tract of land described therein, as owner, even from a tenant, and regardless of .good faith, openly and hostile to the possessor of the title, under such circumstances as to challenge the right of the latter to his knowledge, if he pays reasonable attention to his affairs, adverse possession is initiated, which, if continued for the statutory term, displaces the presumption in favor of the true owner, both under sec. 4210 and sec. 4211, as well, and erects in its stead under such sections a presumption that all the requisites of title by adverse possession have been complied with, as held by numerous decisions of this court. Ill. S. Co. v. Bilot, 109 Wis. 418, 84 N. W. 855, 85 N. W. 402.
Notwithstanding the learned counsel’s persistence in arguing that Pulford v. Whicher, 76 Wis. 555, 45 N. W. 418, is contrary to the foregoing and supports the claim that a grantee, in form in fee, if a tenant, cannot maintain adverse possession as to the landlord, we must adhere to our former view that it does not deal with the present situation at all. It is merely to the effect that, under the peculiar facts of that case, in equity the tenancy was not superseded by possession under a tax deed, so as to cut off the right of the owner under secs. 1189, 1210d, and 1210e, R. S. 1878, to avoid the taxes and deeds for illegality. The tenant under a fraudulent, agreement turned over his tenancy, not by a conveyance in any form, to another who had obtained a tax deed upon the premises, and subsequently obtained a second tax deed upon a tax certificate owned by such other at the time of the commission of the wrong. The action was to avoid the tax deeds and for an accounting. The subject of adverse possession,
Pulford v. Whicher, supra, is the only case decided by this court in the sixty and more years of its history which counsel ■even claim supports their view that adverse possession cannot be predicated on a conveyance from a person in possession, bearing such relation to the true owner as to be under contract to restore possession to him. All the other cases here, comprising very many holding that a grantee, in form, of a fee taking possession under the grant as owner initiates adverse possession, regardless of his knowledge of the true state of the title, are contrary to counsel’s contention, except Watts v. Owens, 62 Wis. 512, 520, 22 N. W. 720, which went off on the old doctrine that there can be no adverse possession in the absence of honest belief that the right coincides with the possession, which is out of harmony with cases before decided •and years ago was repudiated.
One of the first eases here involving the question under discussion shows, most clearly, that the court started with the
“Where one enters upon land under a recorded deed, his ■entry and claim are referred to that deed, and measured by it. If it is a warranty deed, purporting to give him a complete title, his possession becomes adverse to all the world. - . .” The mortgagee’s “assuming to convey the fee of the land by warranty deed was, in itself, as decisive and clear a •denial of the relation of mortgagor and mortgagee as can be required. And the purchaser entering under such warranty •deed is presumed to claim the title which the deed professes to give him.”
To the claim that possession of one under contract to restore to the owner cannot become adverse till notice to such ■owner of a denial of his right and intention to claim adversely to him, which had support in authorities cited, as it 'has in many cited now, the court said:
“I am not aware that, where one enters upon land claiming a perfect title, he is bound to give any other notice to •other claimants than the possession itself, in order to set the .statutes running, there having heen shown no such previous relation between him and them as would require such notice. 'They must take notice at their peril of the real character of Eis possession. Whenever a contest arises, he may show it to have been adverse, if he can; and, in order to do that, may •show under what claim of title he entered.”
“And where he entered under a recorded deed, he may show that. It is not shown to prove notice, as such, but to-show the claim of title under which he held possession.”
The logic of Stevens v. Brooks, 24 Wis. 326; Willison v. Watkins, 3 Pet. 43; and Bradstreet v. Huntington, 5 Pet. 402, is that the moment a tenant assumes to, and does, in form, convey in fee the property of which he is possessed and his grantee enters as owner under the deed, a fraud is committed upon the true owner entitling him to sue at once in ejectment or in trespass upon the theory of his having been disseised. That was the mooted question settled in Willison v. Watkins. The principle of the federal cases is fully indicated by the quotations made and this further from Bradstreet v. Huntington:
“The whole inquiry is reduced to the fact of entry and the-intent to usurp possession. These are the elements of actual disseisin; and yet we have seen that one may become a. disseisor, though entering peaceably under a void deed or a void feoffment or by fraud; and that the intention to disseise may, under circumstances, be imputed to those who by a general rule of law are in ordinary cases incapable of willing, or not bound by an exercise of the will. . . . The fact to be determined is whether the party holds possession for himself or for another; and this can only be determined by evidence, or circumstances to prove the one or the other. . . . Actual' ouster is clearly not requisite, either to be presumed or proved; adverse possession may exist without it; and notice,, as a fact, may clearly be deduced from circumstances as well as positively proved.”
That discussion was directed to the question of whether actual adverse possession can “supply the exigency of actual ouster or notice,” and it was held that it could.
The above statement was fully recognized by this court in Ackerman v. Lyman, 20 Wis. 454, 456, it being held that a
The foregoing was-fully appreciated by Judge Redeield in Sherman v. Champlain T. Co. 31 Vt. 162, to be the logic of the federal cases; which he was pleased to denominate, as before indicated, “a new doctrine,” though it was not so regarded by the federal court. To indicate the precise relations between the former landlord and a usurper, as in this case, the following from Willison v. Watkins, supra, was quoted:
“Had there been a formal lease for a term not yet expired, the lessee forfeited it by this act of hostility; had it been a lease at will from year to year, he was entitled to no notice to quit before an ejectment. The landlord’s action would be as against a trespasser; as much so as if no relation had ever existed between them.”
So the nature of respondents’ possession is referable to their deed and the characteristics of the occupancy, not to the mere right of the grantor. The fact that they claimed openly and notoriously in all respects as an owner would and thus became disseisors regardless of any actual ouster, making themselves trespassers, who could not, at the election of the true owner alone, be turned into tenants, rendered them adverse possessors under secs. 4211 and 4212, Stats. (1898), so that a continuance of the condition for the statutory period prescribed in sec. 4215, the circumstances being such as must have brought such condition home to the true owner if it was paying ordinary attention to its affairs, displaced the presumption under sec. 4216, working a complete transition of the title by operation of 'law.
Cases out of harmony with the foregoing are out of harmony with our statutes and the logic of our decisions. If it be as suggested, that if this court adheres to the former view it will work repose to the titles involved in some eighty pend
The supposed inequity of applying the statutes, as indicated, grows out of misconception, it seems, of the policy of the law and mistaken notion that they are susceptible of being minimized in their literal effect, out of compassion to owners of property liable to lose by laches. Apt comment on that is found in the opinion by Mr. Justice Dodge in McCann v. Welch, 106 Wis. 142, 81 N. W. 996, quoted from, at length, in the former opinion. Other courts made like comments. In Bell v. Morrison, 1 Pet. 351, 360, the federal court, speaking by Mr. Justice Story, used this language:
“It has often been matter of regret, in modern times, that, in the construction of the statute of limitations, the decisions had not proceeded upon principles better adapted to carry into effect the real objects of the statute; that, instead of being viewed in an unfavorable light, as an unjust and discreditable defense, it had received such support as would have made it, what it was intended to be, emphatically, a statute of repose. It is a wise and beneficial law. . . . The English decisions upon this subject have gone great lengths— greater, indeed, in our judgment, than any sound interpretation of the statute will warrant; and, in some instances, to an extent which is irreconcilable with any just principle. There appears, at present, a disposition on the part of English courts to retrace their steps; and, so far as they may, to bring back the doctrine to sober and rational limits. The American courts have evinced a like disposition.”
Any other result than that herein indicated would fail to give effect to the statutes and put secs. 4210, 4211, and 4218 in direct conflict with sec. 4216. Under the former, one having been in actual continuous adverse possession of realty under color of title for the statutory period would be the owner
Our conclusion gives effect to the statutes bearing on the subject as they are written. A person whose possession is usurped by another may prove his right, prima facie, by proof of the former condition, the title in that case resting on presumption. The now paramount presumption may be displaced under sec. 4210 by mere establishment of the legal title in the one dispossessed, creating a presumption of seisin in the holder of such title within the period of the statute of limitations, which is rebuttable as in ease of the preceding-presumption. The now paramount presumption may be displaced under secs. 4210 and 4211 by mere proof of continuous ten-year possession pursuant to an entry, exclusively based on color o£ title, thus creating a presumption that the possession for such period has been characterized with all the essentials of disseisin of every other claimant of the property, which presumption is rebuttable as before and may be by proof in the absence of efficient explanatory circumstances, that the purported conveyance was a medium of conveying a tenancy created by the holder of the legal title and existing at the time the conveyance, creating a presumption under sec. 4216 that the possession under such conveyance was the possession of the holder of the legal title notwithstanding a mere claim of adverse possession — subject to be rebutted as before by proof, as a verity, that the possession was taken under such conveyance as owner actually adverse to all the world and in open notorious defiance of other claimants, and a continuation of such condition of actual notorious adverse possession, undisturbed for the statutory period of ten years. This last, as will be seen, is not a ease of a tenant or his successor in possession, originating a claim of adverse possession, but of a possession commencing under an assertion, in the very nature of the case, of hostile title, the grantee having no notice of the tenancy and under such circumstances, as in this
Without further discussing tbe subject it is tbe opinion of tbe court that tbe conclusion reached on tbe bearing is right and that tbe motion for a rehearing must be denied
By the Court. — So ordered.
