151 Ind. 343 | Ind. | 1898
This was an action by tbe appellee to quiet the title to certain real estate. We have carefully read the evidence, which is quite conflicting; and, accepting that which is most favorable to the appellee, we are fully satisfied that it supports the verdict and judgment in his favor. Of course, we
The character of real estate is of controlling influence in determining what acts of ownership, use or occupancy are adverse. Neither actual occupancy, cultivation nor residence is necessary; and occupancy of a part of a tract, under color of title, is constructive occupancy of the whole. Worthley v. Burbanks, 146 Ind. 534, and authorities there cited. Before the appellant’s occupancy began (indeed, before Hinkle purchased), the land in question seems to have been occupied, actually and constructively, for a period of at least twenty years, in a manner, considering its character, to constitute adverse possession. The acts .of ownership by Winship and Mrs. McKennan seem to have been such as lands of like character were rea
Much importance is attached by appellant’s learned counsel to the fact that during a small part of the period of Mrs. McKennan’s claim of ownership, she resided out of the State, and that, during Hinkle’s claim of ownership,he resided out of the State. Such fact is not conclusive against one claiming by adverse possession. If title has accrued against the true owner, in favor of one who exercises the only act of ownership over the land, though such acts are but slight after title accrues, the true owner is not reinstated simply by the fact of the nonresidence of the adverse claimant. If the title by adverse possession was acquired by the appellee and his predecessors, then the burden would rest upon the appellant to show that he had acquired a superior title. That he did is not seriously insisted upon; and in view of his denial of title in himself, and his efforts to purchase from the appellant, thereby recognizing the appellants’ title, he could not well insist that he stood before the jury favorably in claiming a title by adverse possession, since Mrs. McKennan sold a part of her land, and gave up her residence upon it.
Numerous objections are urged to instructions, the most of which are so general as not to present clearly any question for decision. One instruction advised the jury that it was competent for the appellee to prove title by conveyances from the government, or from some remote grantor in possession in good faith, or by twenty years’ adverse possession. It is said that the allegations of the complaint are not sufficiently comprehensive to admit such proofs of title. We are not advised as to the respect in which the allegations of the complaint would not admit of
It is complained, also, that the court erred in instructing that it was the duty of the jury “to take the law as given * * * by the court.” In a civil trial the jurors do not decide for themselves the law of the case, as in criminal trials. The instruction was correct.
The court, in another instruction, directed the jury that if Mrs. McKennan purchased from Winship in possession, and Hinkle purchased from her in possession, and if both McKennan and Hinkle took and held continuously the possession of the land, claiming to be the owners respectively and exercising acts of ownership thereof, from 1865 to a time eight or nine years ago, when the appellant, without right, and without the knowledge or consent of Hinkle, went into possession, and occupied the same without right, the appellee should recover.
It is said Mrs. McKennan’s claim of title must have rested upon a good faith claim of title by Win-ship. We do not understand that twenty years’ adverse possession in good faith under claim and color of title must depend upon a previous good faith claim of title. Even if Winship held in bad faith, and it is
In a further instruction, the jury were directed that actual occupancy, cultivation, or residence upon the land is not necessary, if the land is so situated as not to admit of any permanent useful improvement, and if the continued claim of ownership had been evidenced by public acts of ownership, under claim and color of title, such as would be exercised over property which he claimed in his own right, and would not exercise over property which he did not claim. As a general proposition, this is the law. Worthley v. Burbank, supra. It is said also to have been inapplicable to the evidence. In this, counsel are mistaken. The instruction applied to the appellee’s theory of the case, upon the possession of any one or more of those who claimed adverse possession. It was applicable alike to the claim of the appellant to a title by adverse possession.
The giving and the refusal of other instructions are objected to, but no specific grounds of objection are stated, nor is it attempted to be shown wherein they violate any legal rule. They are, therefore, passed without consideration. No available error being shown, the judgment is affirmed.