This is а suit for partition of real property located in Grant County. Plaintiffs claim an undivided one-half interest in the property. Defendant, record owner of the other undivided one-half interest, claims to have acquired plaintiffs’ interest by adverse possession. The trial court found for defendant, and plaintiffs аppeal. We review de novo. 1
Prior to 1950, the three plaintiffs 2 each owned one-sixth interest in the property. The other one-half interest was owned by C. M. and Pieter Tensen. All parties owned their interests as tenants in common.
In November of 1950, the Tensens executed a bargain and sale deed purporting to convey the entire property to the defendant Amba Morgan and her husband as tenants by the entirety. Since that time, defendant, whose husband is now deceased, has remained in continuous exclusive possession of the property and paid the taxes thereon.
Defendant claims that her continuous possession of the property since 1950 gives her title to the whole property by adverse possession. Plaintiffs contend that adverse possession can run against cotenants only if notice of ouster is given to the out-of-possession cotenants. Since no actual notice of ouster was given in this casе, plaintiffs claim the trial court erred in decreeing defendant to be the owner of the property in fee.
It is well settled that one cotenant may possess adversely against the other cotenants.
Richards v. Page Investment Co.,
In
Kennedy v. Rinehart,
"If a cotenant makes a conveyance which purports to convey not merely his undivided interest in the land, but the entire interest therein, or in a part thereof, and the grantee in the conveyance takes possession accordingly, without any recognition of the rights of the other cotenant, out of possession, the possession of the grantee is regarded as adverse to the latter, and the latter is charged with notice to this effect. He is charged with notice of the fact that a person other than his original cotenant is in possession of the land, and he is also charged with notice of the character of the claim of such person, and cannot assume that it is other than such as is indicated by the conveyance under which he holds.” Id. at 395, quoting 4 Tiffany, Real Property 932, § 1185 (3d ed 1975).
In Kennedy a cotenant of real property executed a deed purporting to convey full title to the plaintiffs. Plaintiffs remained in possession for 36 years and never recognized any rights in the other cotenants. On these facts, we held that plaintiffs had acquired title to the property by adverse possession.
The rule adopted in
Kennedyhas
been referred to as "presumptive ouster,” the theory being that thе transferee is presumed to claim the interest his deed
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purports to transfer.
See
Annot., 32 ALR2d 1214 (1953) and cases cited therein. Occasionally, courts have indicated that the rule applies only where the transferee "knew nothing of the existence of the other cotenants.”
Johns v. Scobie,
12 Cal 2d 618, 624,
It should be observed, however, that the presumptive ouster doctrine merely eliminates the need for the tenant in possession to notify his cotenants that he intends to occupy the property exclusively. It does not eliminate the normal requirements of adverse possession. The transferee must still prove that he occupied the property openly, notoriously, continuously, and exclusively under a claim of right for the statutory period.
Grimstad v. Dordan,
It is with respect to the "claim of right” element that the nature of the deed and the transferee’s knowledge of the nonpossessing cotenants’ interests become relevant. If the transferee takes under a deed purporting to make him a cotenant only, he is assumed
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to hold the property in recognition of the rights of the other cotenants.
Smith et al v. Tremaine et ux,
supra; 4 Tiffany, Real Property 929, § 1185 (3d ed 1975); Freeman, Cotenancy § 221 (2d ed 1886). Nevertheless, the transferee can denounce the rights of the other cotenants by notifying them that he intends to occupy the property exclusively, and in such a situation he qualifies as an adverse possessor even though he lacks color of title.
Foss v. Paulson,
Like color of title, the transferee’s knowledge of outstanding interests in the property is relevant in determining whether or not he exercised the required claim of right. Normally, one who realizes that another has legal title to property will not claim the property as his own. Nevertheless, knowledgе of an outstanding interest in the property does not preclude the possessor from exercising the claim of right required for adverse possession. In
Bessler v. Powder River Gold Dredg. Co.,
"* * * terms 'claim of right,’ 'claim of title’ and 'claim of ownership’ when used in the books to express adverse intent mean nothing more than the intention of *71 the disseisоr to appropriate and use the land as his own to the exclusion of all others, irrespective of any semblance or shadow of actual title or right.” Id. at 279.
In other words, "claim of right” simply means that the possession is not permissive and that the party in possession has not led the true owner to believe that the possessor recognizes the true owner’s rights. 3 American Law of Property 776, § 15.4 (Casner ed 1974); 4 Tiffany, Real Property, § 1142 (3d ed 1975);
see also Norgard et al v. Busker et ux,
In the present case, the Morgans obtained a deed purporting to convey full title to the disputed proрerty in 1950 and entered into exclusive possession. Plaintiffs were thereby put on notice of the fact that persons other than their original cotenants were in possession of the property, and the Morgans were not required to give actual notice of ouster to qualify as adverse possеssors. Kennedy v. Rinehart, supra. 3 The facts are *72 undisputed that the Morgans occupied the property openly, notoriously, continuously and exclusively for the statutory period. The only question remaining is whether the Morgans exercised the requisite "claim of right.”
Plaintiffs argue that the Morgans could not have claimed complete title to the property for two reasons. First, the attorney who represented the Morgans in their purchase of the property apparently knew or had reason to know of plaintiffs’ interests, and plaintiffs claim that this knowledge was imputable to the Morgans. Second, the Morgans took the disputed property under a bargain and sale deed while taking adjoining property from the same grantors under a warranty deed, and plaintiffs claim this should have put the Morgans on notice of the plaintiffs’ interests in the disputed property.
Plaintiffs’ first argument is without merit. As noted above, knowledge of an outstanding interest in property is nоt necessarily inconsistent with an intent to claim the property as one’s own. The "claim of right” necessary for adverse possession depends upon the intent of the party in possession to hold the property exclusively, and can exist even though the party is aware of an outstanding interest in а third party. Assuming without deciding that the fiction of imputed knowledge applies in this case, we find that the attorney’s knowledge did not negate the Morgans’ intent to claim the property as their own.
*73 Plaintiffs’ second argument also is unconvincing. We do not believe a lay person normally would attach great significance to the distinction between a warranty deed and a bargain and sale deed, and Mrs. Morgan’s testimony at trial indicates that she was never aware of any outstanding interests in the property. 4 But even if we disregard Mrs. Morgan’s testimony and assume that the Morgans appreciated the distinction between a warranty deed and a bargain and sale deed, there still is convincing evidence that the Morgans nevertheless intended to claim the entire property as their own. After obtaining a deed that purported to give them full title to the property, the Morgans fenced the property, irrigated it, cut hay off it, and kept their cattle there during the grazing season. They also paid all the taxes on the property from the date of purchase until 1976, when the property was sold. In short, their actions were consistent with a claim of complete ownership, and there is no evidence that they ever acknowledged interests in anyone else. Plaintiffs made no effort to contact the Morgans until 25 years after the Morgans purchased the property, either to inform them of the plaintiffs’ interests or to inquire into the nature of the Morgans’ possession. Upon de novo review of this evidence, we conсlude that defendant has established that she and her husband held the disputed property under the requisite claim of right, and that the trial court was *74 correct in decreeing defendant to be the owner of the entire property by adverse possession. 5
Affirmed.
Notes
Defendant’s counterclaim is in the nature of a suit to quiеt title, which is an equitable proceeding, OBS 105.605. Because the issues raised on appeal all relate to defendant’s counterclaim, we treat the appeal, as have the parties, as an appeal from an equitable decree. Therefore, de novo review is required by ORS 19.125(3).
For convenience, we will refer to the record owners against whom defendant claims title by adverse possession as "Plaintiffs.” The actual plaintiffs in this case are successors in interest of the record owners.
Plaintiffs claim that
Kennedy v. Rinehart,
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Plaintiffs also rely on
Currey et al v. Smith,
At trial, the following exchange оccurred between defendant and her attorney:
"Q. When was the first time that you learned that somebody else claimed some interest in a cloud on this title or an interest in the paper title or something of that concern?
"A. It was 1975 when Mr. Stunz came to my house and told me.
"‡ ^ ^
"Q. Up until that time, had anybody ever told you thаt they had an interest?
"A. No.
"Q. Did you ever in your mind think or have any reason to think anybody had an interest?
"A. No.”
The trial court relied on ORS 105.615 in decreeing plaintiffs to be the owners of the property in question. ORS 105.615 provides:
"An action may be brought under ORS 105.605 by a tenant in common of real property to establish adverse possessiоn as against all other cotenants if the tenant in common has been in possession of the real property, exclusive of all other cotenants, for an uninterrupted period of 20 years or more and has paid all taxes assessed against such property while in possession.”
The trial cоurt’s memorandum opinion appears to indicate that a tenant in common may establish title by adverse possession under the statute merely by showing that he has been in exclusive possession of the property and has paid the taxes for a 20-year period. We do not read the statute so broadly. By its terms, the statute simply allows a suit to quiet title based on adverse possession to be brought by a cotenant who meets the listed criteria; it does not eliminate the requirement that the elements of adverse possession be shown. Because of our disposition of the present case, we need not rest our holding on the statute.