McMillan v. Fuller, 41 App. D.C. 384

McMillan v. Fuller

41 App. D.C. 384 | D.C. Cir. | 1914

Mr. Chief Justice SimrARD

delivered the opinion of the Court':

3. There was no error in excluding evidence offered by plaintiff to show that he had paid the taxes on lot 21 from the time of his acquisition of title. It was admitted that his claim of title was complete. Unless defeated by defendant’s adverse possession, he was entitled thereby to recove’r possession. The payment of taxes was not necessary to his recovery; and he sustained no injury by the exclusion of the proof.

2. The second error is assigned on the permission given defendant to amend and plead limitation.

It had been the settled rule in this District, under former statutes of limitations, that it was -unnecessary to plead limi*390tatlon where the general issue had been pleaded in actions of ejectment. Hogan v. Kurtz, 94 U. S. 773, 776, 24 L. ed. 317, 319; Morris v. Wheat, 1 App. D. C. 237, 239. Defendant, relying upon this rule, had pleaded the general issue, and introduced evidence thereunder. When his title by adverse possession had been assailed, he, apparently in the exercise of abundant caution, obtained leave to amend by setting up limitation specially. It is not apparent that there has been any change in the Code necessitating a change in the rule of practice; but whether so or not, we need not pause to consider. The Code, in the interest of justice, permits an amendment at any stage of the case. Sec. 399 [31 Stat. at'L. 1252, chap. 854]. Plaintiff was not taken by surprise; no additional evidence was introduced; plaintiff sustained no possible legal injury. There was no error.

3. There was no error in refusing plaintiff’s first special instruction, or in granting that of defendant. The statute of limitations now in, force requires an action for the recovery of land to be brought within fifteen years after the adverse possession began. Code sec. 1265 [31 Stat. at L. 1389, chap. 854]. Adverse possession, as defined in the instruction, maintained for fifteen years before action begun, confers title.

Defendant selected his lot, had it surveyed, presumably by the District surveyor, who under the building regulations is authorized to locate the lines for those intending to build, enclosed it, and erected a substantial house within those lines. Por more than fifteen years he occupied the house in complete ignorance that the deed received by his attorney actually conveyed the adjoining lot. The mistake seems to have been in the preparation of his deed, and not in the occupation of the lot. We are of the opinion that the possession was adverse within the meaning of the statute. Johnson v. Thomas, 23 App. D. C. 141, 150. In that case it was said: “Certainly it is well-established law that if a man goes upon the land of another, whether he does so by honest mistake, upon the supposition that it is his own, or with the deliberate purpose of appropriating to himself that which is the property of another, and occupies it exclusively and adversely to all the world for a period of twenty *391[now fifteen] years or upwards, lie may by such adverse occupation acquire a complete title in himself. This is elementary doctrine in tbe law of adverse possession; and most assuredly greater consideration is due to a title by adverse possession based upon an honest mistake than to one based upon deliberate and wilful wrong.” See also Rudolph v. Peters, 35 App. D. C. 438, 447, Ann. Cas. 1912A, 446.

Sec. Ill of the Code [31 Stat. at L. 1207, cbap. 854], relied on by plaintiff, has no application in this case.* Nor is it material whether defendant may hereafter, as suggested by plaintiff, assert and maintain title to the adjoining lot under the deed conveying the same to him. That question is not involved.

The judgment is affirmed with costs. Affirmed.

Note. — Kec. 1 U, D. G. Code, permits one who has acquired title to land by adverse possession to maintain a suit in equity to establish such title as against the holders of the record title, and limits the entire period during which the rights of the holders of the record title, even where some of them are infants, shall be preserved, to twenty-two years from the time when the lights of the adverse holder accrued. — Reporter.