21 Kan. 691 | Ark. | 1879
The opinion of the court was delivered by
This was an action for rents; but the only question presented to this court is whether, upon, the facts of the case, the plaintiff below, Mary E. Olsen, is, as against the defendant below, Dennis Mooney, the owner of the real estate for which said rents are claimed. Originally, both parties claimed to own said real estate, and both claimed title thereto under one Lydia Mooney Foster. The plaintiff, Mary E. Olsen, claimed as the half-sister and only heir of said Lydia Mooney Foster, and the defendant, Dennis Mooney, claimed as the devisee of the said Lydia Mooney Foster.
It seems from the oral arguments of counsel, that Dennis Mooney was the uncle of both said Lydia Mooney Foster and said Mary E. Olsen, and that they were the daughters and only heirs of his deceased brother.
It appears that the will of the said Lydia Mooney Foster, devising said property to said Dennis Mooney, was, after he took possession of the property under it, duly set aside by proper judicial determination. This ended Mooney’s claim under the will; but he now sets up the claim that said Lydia never owned the property, and therefore that it could not have descended from her to the plaintiff Olsen, and therefore that the plaintiff Olsen cannot maintain this action. He claims that Foster’s first wife is still living; that neither she nor Foster was ever divorced from the other; that the marriage of Foster and said Lydia was therefore void; that at Foster’s death, the property descended by law to Foster’s first wife, and not to Lydia, and that Foster’s first wife still owns the property. The plaintiff, however, contends that this second claim of the defendant, that the property descended to Foster’s first wife and not to Lydia, is not available, for several reasons.
1. The plaintiff contends that as both parties claimed originally under said Lydia, that the defendant cannot now abandon that claim and set up a new and different claim inconsistent with his first claim, denying that said Lydia ever had any interest in the property. (Gaines v. New Orleans, 6 Wall. 642; Myrick v. Wells, 52 Miss. 150, 154.)
2. The plaintiff also contends that the defendant cannot dispute the validity of said marriage between said Foster and said Lydia. (Carroll v. Carroll, 20 Texas, 731; Greensborough v. Underhill, 12 Vt. 604.)
3. And the plaintiff also contends that even if said marriage betwen Foster and Lydia .was void; even if Foster’s first, wife was still living at the time of his second marriage, and that neither he nor his first wife was ever divorced; even i-f the title to the property descended to Foster’s first wife and not to his second wife Lydia; even if his first wife is still living, and, as against the plaintiff, is the paramount owner of the property — still, as between the plaintiff and the defendant, the plaintiff must be considered as the owner of the property. And the plaintiff so contends because the plaintiff’s ancestor, Lydia, had the peaceable, quiet and exclusive possession of-the property, under color of title, claiming to be the owner thereof, and the plaintiff succeeded uuder the law of descents and distributions, (Gen. Stat. 394, 395,) to all of Lydia’s rights — and the defendant is a mere subsequent intruder and trespasser upon the premises.
Without expressing any opinion as to the first and second contentions of the plaintiff, we would say that we think the third is sound. The plaintiff has unquestionably succeeded to all of Lydia’s rights, whatever they may be, and prior possession, even in ejectment, will prevail over a subsequent possession acquired by entry without any lawful right: 5 U.S. Dig. (F. S.) 141 Par. 129, and cases there cited. See, also, Ludlow v. McBride, 3 Ohio, 241; Ludlow v. Barr, 3 Ohio 388; Devacht v. Newsam, 3 Ohio, 57; Newnam v. Cincinnati, 18 Ohio, 323; Phelan v. Kelley, 25 Wend. 389; Jackson v. Harder, 4 Johns. 202; Hoey v. Furman, 1 Penn. St. 295; Perkins v. Blood, 36 Vt. 273; Piercy v. Sabin, 10 Cal. 22; Williams v. Swetland, 10 Iowa, 50. This is certainly true where the possession is coupled with a claim of ownership. Possession with a claim of ownership is not only evidence of title, but it is title itself in a low degree. (2 Black. Com. 195.) And it is such a title as will descend to heirs. (2 Black. Com. 196; Ludlow v. McBride, 3 Ohio, 241; Phelan v. Kelley, 25 Wend. 389.) With reference to what interest in land will enable a plaintiff to recover in ejectment in this state, see Duffey v. Rafferty, 15 Kas. 9; O’Brien v. Wetherell, 14 Kas. 622; Simpson v. Boring, 16 Kas. 248.
In our opinion the plaintiff must recover. If the defendant claims under said Lydia, then the plaintiff’s right to the property is unquestionably the best, for she has succeeded to all of Lydia’s rights, and he has succeeded to none of them. But if the defendant does not claim under Lydia, then he is a mere intruder and trespasser, having no rights as against the plaintiff; for whatever supposed right the defendant may have obtained as against others, by virtue of his possession and claim of ownership, yet as against the plaintiff, his possession, claim of ownership, and right derived therefrom, are subsequent in time, and therefore inferior in efficacy to those of the plaintiff, inherited from her sister Lydia. Lydia not only had possession of the property, and claimed to own it, but she also had color of title, and the only way in which it is attempted to be shown that she did not in fact have title, is by showing that her marriage with Foster was invalid. We do not think that a subsequent intruder can show this for the purpose of invalidating her title.
The judgment of the court below will be affirmed.