Jenkins v. Dewey, 49 Kan. 49

Jenkins v. Dewey

49 Kan. 49 | Kan. | 1892

The opinion of the court was delivered by

Johnston, J.:

This action was brought by Reuben L. Dewey to quiet his title to a tract of land in Bourbon county, as against Albert G. Jenkins, who claimed an interest in the same. Judgment was given in favor of Dewey, and the question presented for review arises upon the facts stated in his petition. The averments of the petition substantially show that on October 1, 1870, Harriet I. Jenkins, the wife of Albert G. Jenkins, was the owner of the land in controversy as of her own separate estate, and was in possession of the same by a tenant, but neither she nor her husband had ever occupied the land as a homestead. On the day mentioned, she conveyed the land to one Munday by warranty deed, which contained all the usual covenants, and placed Munday in possession of the property, but her husband did not join in the execution of the deed, “for the reason that he claimed it to be the property of his wife, and it was not at the time thought necessary that he should sign it in order to convey a clear and perfect title; and although he fully knew all the facts concerning the sale, he claimed no interest, was not asked to sign the deed, and considered the deed as conveying; an absolute fee-simple title to the property, such being the advice given by a legal friend at the time, and the said conveyance was not made for the purpose of defrauding the husband.” Thereafter, Munday conveyed the property by warranty deed to another, and by a chain of mesne conveyances, all by deed of general warranty, the land became the property of Dewey. During all the time from the original conveyance to Munday, all the grantees and owners of the *57land have claimed full ownership of the same in fee-simple absolute, and have had the open, notorious, peaceable and exclusive possession of the land, and have paid all the taxes thereon. During all the time there has been a dwelling-house upon the land, in which the owners and their families, or tenants, have continuously dwelt, but Jenkins, who has always lived near to the land and been acquainted with all the facts, has never claimed the same nor intimated to any of the owners of the property that he had any interest therein; in fact, through all these years he never supposed that he had any interest in the property, and the matter had passed from his memory and recollection. After Munday and those holding under him had been in the open, adverse and unquestioned possession of the property for 16 years and two months, Harriet I. Jenkins died, leaving as her survivor her husband, Albert G. Jenkins; but he never raised any question as to the title of the property until more than two years after the death of his wife, when, upon an examination of the title by a proposed purchaser, it was discovered that Jenkins had not joined his wife in the conveyance. The supposed defect in the title having come to the attention of Jenkins, he claimed an undivided one-half interest in the property. Mrs. Jenkins died on December 1, 1886, and her surviving husband made no claim on the property until December 1, 1888; and it is alleged that the property had doubled in value since the original sale by Mrs. Jenkins to Munday, on October 1, 1870. The sufficiency of these facts was chair lenged by demurrer, and the district court held that Jenkins had no right or interest in and to the premises, and gave judgment accordingly.

Jenkins contends that his wife owned the property during the marriage, and as it had not been sold on execution or other judicial sale, and_ was not necessary for the payment of the debts of his wife, and that as he had made no conveyance of the same, he was entitled to a one-half interest in the land under the statute of descents and distributions. Gen. Stat. of 1889, ¶¶ 2599, 2619. His contention cannot be sustained. *58Under the circumstances, his silence and acquiescence for more than 15 years effectually bar him, and perfects title in Dewey. Although he did not join in the conveyance, it was his understanding and purpose that the grantee should take the complete title, including the possible interest which he might have as the survivor of his wife. He and his wife both intended that the grantee should be invested with an absolute fee-simple title, and the only reason why he did not sign the conveyance was because he had been advised and believed that his signature was unnecessary to a perfect title. The grantee understood he was obtaining a complete estate, with every possible or contingent interest incidental to the ownership of the grantor. With this understanding he took the exclusive possession of the land, and he and those holding under him had held notorious, exclusive, continuous and adverse possession against Albert G. Jenkins and every one else for more than 16 years before Mrs. Jenkins died. Jenkins lived in the neighborhood, saw the improvements made, knew that the taxes were being paid, was informed of the exclusive and hostile character of the possession taken by these owners, and understood that they were claiming every vestige of title in the land; and yet he remained silent for more than 18 years, and did not claim any interest until two years after the death of his wife. It was then too late. The 15-years statute of limitations had then run, and had cured the original defect in the conveyance. The statute of limitations began to run as soon as the occupation and possession became adverse. The understanding and intention of the parties have much to do in determining the adverse character of the possession; and it is generally held that, where there is an occupation áttended with a clear intent to hold against all other persons, the possession is adverse to all. Busw. Lim., §§ 233, 237. The occupation of the land in question by the .grantees of Mrs. Jenkins, with the intent to claim all the title against her and her husband, together with their knowledge of such claim, made the possession adverse as to both. Instead of asserting title or instituting some appropriate proceeding to preserve his *59contingent interest when he found that the grantee was claiming a perfect title, he, with full knowledge of the adverse claim and occupation of the premises, allowed his possible and incidental interest to be completely extinguished. This contingent interest is no more sacred and it cannot escape the bar of the statute any more than the principal title or estate to which it is a mere incident. If no deed had been made by Mrs. Jenkins, and the grantee had taken the open, notorious and exclusive possession of the land, claiming ownership of the same against every one, he would have acquired a title at the end of 15 years which would have effectually extinguished the title of Mrs. Jenkins and the inchoate interest of her husband. The result cannot be different where Mrs. Jenkins, the owner of the land, has made a formal conveyance of the same. Before she died the complete title had been divested by the statute of limitations and hence there was nothing to descend to her husband.

We think the district court ruled correctly in overruling the demurrer, and hence its judgment will be affirmed.

All the Justices concurring.