Stevens v. Brooks, 24 Wis. 326

Stevens v. Brooks

24 Wis. 326 | Wis. | 1869

PaiNE, J.

The demurrer to the complaint must be sustained, upon the ground that it appears upon the face of it that the action is barred by the statute of limitations.

The complaint shows that the defendant took a warranty deed of the premises in 1846, and entered into possession soon after, under that deed, and has been in possession ever since.

The only answer which the plaintiff makes to the statute of limitations is, that inasmuch as Noonan, the defendant’s grantor, had only the rights of a mortgagee, therefore the defendant is to be supposed to have claimed only such title as Noonan could actually give him, and not such as Noonan professed to give, and warranted to bim by the deed. In that case he would be a mere mortgagee in possession, claiming only that character, and the possession would not be adverse. But it seems clear that, upon the facts stated, the court is not at liberty to impose any such character upon the defendant’s claim and possession. On the contrary, where one enters upon land under a recorded deed, his entry and claim are referred to that deed, and measured by it. If it is a warranty deed, purporting to give him a complete title, his possession becomes adverse to all the world. Prescott et al. v. Nevers et al., 4 Mason, 326; Bradstreet v. Huntington, 5 Peters, 402, 443; Town v. Needham, 3 Paige, 546; Jackson v. Smith, 13 Johns. 406; Angell on Limitations, § 400.

The cases showing that, where the relation of mortgagor and mortgagee is recognized by the parties, the possession is not adverse,- and that it requires some distinct act or denial to terminate that acknowledged relation and *330set the statute running, are not applicable. There is here no such acknowledged relation, and never has been. The inception of the defendant’s title was the warranty deed from Noonan. And although Noonan had once been a mortgagee only, and although he may have been so at the time of giving the deed, so far as his strict rights were concerned, yet even he did not then acknowledge that relation, having resorted to a sale, which he supposed had vested in him the complete title. His assuming to convey the fee of the land by a warranty deed was, in itself, as decisive and clear a denial of the relation of mortgagor and mortgagee as can be required. And the purchaser, entering under such warranty deed, is presumed to claim the title which the deed professes to give him.

Counsel suggests that notice to the mortgagor was necessary, and that the recording of the deed was not notice, because such record is only notice to subsequent purchasers. I am not aware that, where one enters upon land claiming a perfect title, he is bound to give any other notice to other claimants than the possession itself, in order to set the statute running, there having been shown no such previous relation between him and them as would require such notice. They must take notice at their peril of the real character of his possession. Whenever a contest arises, he may show it to have been adverse, if he can; and, in order to do that, may show under what claim of title he entered. And where he entered under a recorded deed, he may show that. It is not shown to prove notice, as such, but to show the claim of title under which he held possession.

The bar in this case, on the facts stated in the complaint, seems to be complete ; and the order must be affirmed.

By the Qourt. — Order affirmed.