Schoonover v. Tyner, 84 P. 124

84 P. 124 | Kan. | 1905

The opinion of the court was delivered by

Greene, J.:

It is not denied that when George W. Knox died an undivided one-half of this land immediately descended to his children and the other undivided one-half to his widow. These heirs then became tenants in common of the land. At the death of the widow her undivided one-half descended to her heirs, who were Roderick (the plaintiff), Louis C. and Frances Schoonover, and Joanna Knox, each succeeding to an undivided one-fourth of the widow’s portion and becoming tenants in common with the heirs of George W. Knox of the entire estate.

It is elementary that the possession of one of several tenants in common is the possession of all, and where a tenant in common, either in or out of possession, transfers his interest in the estate to a stranger the grantee becomes a tenant in common with all the others. (17 A. & E. Encycl. of L. 662, 668; Gibbs, Administrator, v. Smith, Executor, 66 Mass. 393; Battel v. Smith, 80 Mass. 497; Gratz v. Land & River Imp. Co., 82 Fed. 381, 27 C. C. A. 305, 40 L. R. A. 393; Wallace v. Miller, 52 Cal. 655.) Joseph Martin, by his purchases of the interests of some of the heirs, became a tenant in common with them; and his entry into the possession of the land thereunder was that of a tenant in common, and his possession as such continued until some act was done which the law would recognize as an ouster or dispossession of his cotenants.

There is a great distinction between the rule applicable to the starting of the statute of limitations in an action of ejectment where the defendant went into wrongful possession and where the possession was rightful, such as the possession of a tenant in common for himself and his cotenants. (Sparks v. Bodensick, ante, p. 5.) This distinction áppears not to have been very clearly observed in the trial of this cause. As to the former the statute.begins to run in favor of the occupant immediately upon his taking the open, notorious and exclusive possession. Such possession is of itself adverse, and, being open and notorious, is notice to every person. Therefore a right of action in favor of the owner of the title accrues at once, and this starts the statute of limitations.

The claim of title of a tenant in common in possession which is necessary to put in operation the statute of limitations against cotenants out of possession must be actual, exclusive, and wholly within the claimant’s own right. The possession must also be exclusive and adverse to all tenants in common, and in this state this condition must continue for a period of fifteen years before the statute of limitations becomes a bar to an action of ejectment by a cotenant out of possession.

In Warfield et al. v. Lindell et al., 38 Mo. 561, 581, 90 Am. Dec. 443, the court, in speaking of the acts necessary to constitute an ouster by a tenant in common in possession, said:

“For this purpose there must be outward acts of exclusive ownership of an unequivocal character, overt and notorious, and of such a nature as by their own import to impart information and give notice to the cotenants that an adverse possession and an actual disseizin are intended to be asserted against them.”

This rule was adopted in Squires v. Clark, 17 Kan. 84, where this court quoted approvingly the following from Warfield v. Lindell, 30 Mo. 272:

“A possession of land by a tenant in common for twenty-six years, and an exclusive receipt by him of the rents and profits, without any account rendered, or any demand made, would not of themselves raise a legal presumption of ouster by such tenant in common of his cotenants.” (Page 87.)

In Ingalls v. Newhall, 139 Mass. 268, 272, 30 N. E. 96, we find the rule stated thus:

“ ‘It is the general rule of law,’ says Mr. Justice Morton, ‘that the possession of one tenant in common, though exclusive, being consistent with the right of his cotenant, does not amount to a disseizin of the co-tenant, and that an ouster, or some act which the law deems equivalent to an ouster, is necessary to constitute a disseizin of his cotenant by a tenant in common.’ ”

The evidence necessary to establish an ouster by a tenant in common must be positive, clear, and unequivocal. Having gone into possession of the land as a tenant in common, the law presumes that the character of his possession does not change and has reference to the title under which he entered. Therefore, before it can be held that a tenant in common in possession has committed the wrong of ousting his co-tenant, the acts which constitute the ouster, and the intent on the part of the tenant in common in possession to oust his cotenant, must be clearly and satisfactorily shown. The acts of Joseph Martin with reference to his possession and ownership of the land in question, as shown-by the record and enumerated in the statement of facts, conclusively show that he never claimed the entire estate, and that he never was in adverse possession of the entire tract. After he went into possession as a tenant in common he purchased from time to time, until December, 1888, the interests of others of his cotenants; and in 1894, still recognizing the interests of his cotenants — the Spurgeon heirs —he divided the land with them. These acts alone are a complete refutation of the claim now made that Martin was holding adversely and claiming to own the entire title to this property. Such acts are a continual recognition of the outstanding interests of his cotenants, and cannot be reconciled with a claim of exclusive ownership and adverse possession.

If the continued possession by Martin of the portion of land set apart to him under the division in 1894 can be said to have been exclusive and adverse, it is the first time in the history of this case that he was holding any part of the land exclusively for himself and under a claim of adverse possession. It is not, however, necessary to decide this question. Conceding that the • possession by Martin of the west 118 acres, after the division, was exclusive and adverse, and amounted to an ouster of the other cotenants, it only dated from 1894, and therefore was not of sufficient duration to bar the present action. It follows, therefore, that the statute of limitations had not barred the plaintiff’s right of recovery.

The judgment is reversed and the cause remanded.

All the Justices concurring: