191 Iowa 969 | Iowa | 1921
This is an action to quiet title to Lot 1, Block 139, in the city of Denison. Martha Smyth died intestate, May 30,1888, without issue, survived by her husband, Samuel Smyth, and seized in fee of the above-described real estate. She was also survived by two brothers, John and James Rollins, so that title to the property passed, one half to Samuel Smyth, her husband, and one fourth to each of her brothers. The defendant Emma Coleman Rollins is the wife of James Rollins. Plaintiffs are distant relatives of Samuel Smyth’s, and base their claim of ownership upon a warranty deed from him, executed March 22, 1907, for an expressed consideration of $1.00 and love and affection, and upon adverse possession. In 1889, Samuel Smyth and his brother James erected a small story and a half residence on the above-described lot, and moved from the country, where they previously resided, into said house, and continued to reside there until the death of James, which occurred a few years before the death of Samuel. Samuel died in 1913. After the death of James, Samuel, although retaining possession of the house, ate his meals and slept at the home of his nephew Samuel Luney, and later at the home of his nephew William Luney. The warranty deed conveying the property jointly to plaintiffs was, immediately upon its execution, delivered to Samuel Luney, who was then their legal guardian, they being minors. Samuel Luney placed the deed with papers belonging to him, in a local bank, where it remained until after the death of Samuel Smyth, when, on October 6, 1913, it was filed for record and recorded in the office of the county recorder. None of the plaintiffs went into possession of the property until after Samuel’s death, although they knew that a deed conveying the property to them had been executed. The record, although brief, shows that Samuel Smyth at all times after his wife’s death exercised exclusive control over the property, paid the taxes, ánd claimed to be the absolute owner thereof. Appellee lived in the country near Denison, at the time of his sister’s death, and, in the ordinary course of travel to and from Denison, passed by the property in question. He must, therefore, have known that a residence was being built upon the lot. • He has at all times since resided in Denison or vicinity. James Rollins, so far as the record discloses, never asserted any claim or interest to or in the property
The law that the entry and possession of one tenant in common is presumed to be for the benefit of all, and that such possession is to be regarded as the"possession of all, until rendered adverse by some unequivocal act or series of acts or declaration of The tenant in possession indicating or proclaiming his intention to claim the entire estate, and brought to the actual notice of his cotenants, is too familiar to call for discussion. It is equally well settled that a tenant in possession may oust his cotenant and start the statute of limitations to running, and acquire title to the whole by adverse possession. Actual notice of the hostile claim of the tenant in possession must, however, be brought to the attention of his cotenant before the statute will run. The rule announced in Burns v. Byrne, 45 Iowa 285, has been consistently followed. It is as follows:
‘ ‘ The seizin and possession of one tenant in common are the seizin and possession of the other. One can never be disseized by another without an actual ouster. By actual ouster is not meant a physical eviction, but a possession attended with such circumstances as to evince a claim of exclusive right and title, and a denial of the right of the other tenants to participate in the profits. An actual ouster and consequent adverse possession*972 might be inferred from sole possession and an exclusive reception and enjoyment of the rents and profits, with the knowledge and implied acquiescence of the other tenant in common, for the period of ten years.”
Mere occupancy for 10 years by one tenant in common is manifestly not, in itself, sufficient to justify a claim of ownership by adverse possession, although courts in some other jurisdictions have held that exclusive occupancy for a long time may justify an inference of ouster. Flock v. Wyatt, 49 Iowa 466. Actual notice of ouster may be proven by either direct or circumstantial evidence. Casey v. Casey, 107 Iowa 192. It will serve no useful purpose for the court to review our long line of decisions upon this question, but see the following: Moore v. Antill, 53 Iowa 612; Laraway v. Larue, 63 Iowa 407; Knowles v. Brown, 69 Iowa 11; Killmer v. Wuchner, 74 Iowa 359; Bader v. Dyer, 106 Iowa 715; Casey v. Casey, supra; Blankenhorn v. Lenox, 123 Iowa 67; Curtis v. Barber, 131 Iowa 400; Frye v. Gullion, 143 Iowa 719; Goulding v. Shonquist, 159 Iowa 647; Sagen v. Gudmanson, 164 Iowa 440; Erickson v. Johnson, 172 Iowa 12; Schleuter v. Reinking, 189 Iowa 452; Ratigan v. Fatigan, 181 Iowa 860.
As already stated, Samuel Smyth and his brother erected a dwelling house upon the lot in controversy, and moved into it within a year after the death of Martha Smyth, in 1888. They continued to occupy it until the death of James, more than 25 years later. During all of this time, Samuel claimed to own it, paid the taxes thereon, and in 1907 executed a warranty deed, conveying the entire property to plaintiffs. So far as shown by the evidence, he .kept the property in. repair, and apparently never dreamed that James Rollins claimed tó have an interest therein. All of these facts must have been known to the defendants; yet James Rollins does not claim that he ever denied that Samuel Smyth owned the property, nor did he ask for the partition thereof or claim compensation for the use of his interest, or otherwise assert claim to the property. It is, however, claimed by James that no administration was ever had of the estate of Martha Smyth, and that she left considerable money which was used by her husband in the erection of the house. The record, however, sustains this contention only to the extent of
