42 F. 609 | U.S. Circuit Court for the District of Southern Ohio | 1890
(after stating the facts as above.) The contention of counsel for the defendants in support of their motion, that a suit in equity for partition is not an appropriate proceeding to try title to property, and, when the complainant’s title is legal and is disputed, the bill will be dismissed, or proceedings stayed until he establish his title at law, was recognized by tins court in McClaskey v. Barr, 40 Fed. Rep. 563. That adverse possession ripens into title, and that in all cases the title vests as soon as the remedy against the adverse holder is barred by the statute of limitations, is so well established by decisions of the supreme court of Ohio, (Kyser v. Cannon, 29 Ohio St. 359; Rhodes v. Gunn, 35 Ohio St. 387,) and by the supreme court of the United States, (Leffingwell v. Warren, 2 Black, 605; Croxall v. Shererd, 5 Wall. 289; Bicknell v. Comstock, 113 U. S. 152, 5 Sup. Ct. Rep. 399; Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. Rep. 209,) that it is not open to be disputed. The question to be decided is whether the answers present a good pica of the statute of limitations, or that the title is legal, and is disputed.
The will of William Barr, Sr., winch it is admitted was duly probated in the probate records of Hamilton county, devised the real estate described in the bill to his executors for the use of his son, John M. Barr, during his natural life, and after his death in trust for his wife,
It is averred by the complainants, and admitted by the defendants, that, in 1838 and 1839, Morgan procured some 19 deeds from children of John Barr, Samuel Barr, and Jane McWhirter, conveying their interest in the entire tract of land described in bill. Upon the death of Maria Bigelow, which occurred, according to the averments of the bill, in August, 1860, Morgan’s grantees, by virtue of these convej'ances and subsequent conveyances to them, became co-tenants with complainants, and with the heirs of Mary Jane Barr, in the property. Now, what are the averments upon wffiich the claim of adverse possession, subsequent to that time, is based? There are averments, already noticed, of continuous and exclusive possession, of receiving and retaining all the rents and profits, of paying taxes, and of making permanent and costly improvements, all claimed as indicating a holding adversely, and tlie as
Zeller's Lessee v. Eckert, 4 How. 289, is in point. There was in that case a devise of land to the son of the testator, with a provision that the widow should continue in possession and occupation of the promises until the son arrived at the age of 15 years. The supreme court hold that her possession was not adverse to the; heirs of the child during that period. So hero the possession of Morgan and of 1ns grantees, during the life-time of Maria Bigelow, was not adverse to the heirs of Mary Jane Barr. The supreme court further held that, as the possession “was originally taken and held in subserviency to the title of the real owner, a clear, positive, and continued disclaimer and disavowal of the tille, and assertion of an adverse right, and to be brought home to the party, are indispensable, before any foundation can be laid for the operation of the statute.” The court further said that—
“Otherwise the grossest injustice might be practiced; for without sueli notice he might well rely upon the fiduciary relations under which the possession was originally taken and held, and upon the subordinate character of the possession as the legal result of those relations.”
And still further:
“The statute, therefore, does not begin to operate until the possession, before consistent with the title of the real owner, becomes tortious and wrongful by the disloyal acts of the tenant, which must be open, continued, and notorious, so as to preclude all doubt as to the character of the holding, and the want of knowledge on the part of- the owner. ”
It is urged that the purchase and procurement of the conveyances by Morgan above referred to, and the purchases by Lincoln and Smith as trustees on behalf of the defendants, subsequent to the death of Maria Bigelow, onght not to be treated as recognitions of the complainants’ title, but rather as purchases of the outstanding interests, for the protection of the defendants’ title, made to avoid litigation, and by way of compromise and buying peace. All the conveyances since the case of Poor v. Considine are averred in the answer to have been so made, and it is urged that they did not, therefore, interrupt the continuity of the adverse possession claimed on behalf of the defendants. All this may bo granted for the sake of the argument, but without helping the defendants. The question is not whether those acts interrupted the continuity of possession, but how do they bear upon the question of notice to the co-tenants who were out of possession? Counsel say that the defendants did not claim title under any of these deeds, and that their possession and title are referred entirely to the deeds from Morgan to his grantees, and the derivations of title subsequently by defendants under those deeds. It is easy to see that if Morgan had made no purchases from the heirs
But it is urged that exclusive possession by a tenant in common for a great length of time, without interruption or claim by the other tenants, is evidence from which a jury .would be authorized to infer or presume an actual ouster, and that on similar evidence a grant may be presumed. This is undoubtedly true as a general proposition, but it falls also under the head of laches, and is cognizable in equity. In Hall v. Law, 102 U. S. 461, long-continued possession of this kind was held to be sufficient to authorize a decree dismissing the bill, on the ground that the claim set up by the complainants was stale. There is therefore no reason why upon this proposition the case should be sent to a jury.
The answer denies that the complainants are descendants of Mary Grafton, and denies their heirship, and it is contended that this is a denial of title, and hence that the defendants’ motion must be granted. It is urged' that the asserted claim of the complainants depends wholly upon their heirship, which lies at the threshold of their case, and that, upon it depends their whole title. The case of Wilkin v. Wilkin, 1 Johns. Ch. 111, is cited; but in that case whether the complainants were heirs of the person last seised, was only one of the questions in dispute. In this case it is admitted by the defendants that the land described in the bill descended in accordance with the provisions of the will of William Barr, Sr., to the heirs at law of Mary Jane Barr. The denial of the heir-ship of the complainants, therefore, raises a question of identity, rather than of title, and does not, we think, make it necessary or proper to submit the question to a jury.
The last objection which we think it necessary to consider is that the complainants are not in possession, and that it matters not for how short a time the adverse possession has been maintained, for 21 days is as good for this proposition as 21 years; and, if this adverse possession is established, the tenants do not hold together, and the plaintiff must try his title in ejectment before he will be in a position to sue in partition. But we have already seen that the admissions by the defendant in the pleadings are sufficient in themselves to defeat the claim that there has been an adverse possession. Moreover, this suit was brought in a state court, and removed to this court, and, as was held in Tabler v. Wiseman, 2 Ohio St. 207, a right of entry will entitle a party to the proceedings in partition, in Ohio, without the actual seisin required in some other states. The authorities are not uniform on this point. In some states it has been held that the complainant must allege that he is seised, which imports a present possession as tenant in common or coparcener, and that a mere right of entry, if shown, will not be sufficient. It has been so held in New York and in Vermont. In other states, as in Maine, Massachusetts, New Hampshire, Indiana, Minnesota, and Illinois, it has been held, on the other hand, that a disseised co-tenant may have partition.