83 Wis. 364 | Wis. | 1892
The judgment in the former case of Stewart v. Stewart, 50 Wis. 445, which was put in evidence by the
The judgment in question was also conclusive on the status or relation of the parties to each other, and their rights in and to the tract of land in question, and conclusively established the fact that the parties to it were tenants in common of the premises, and that all their rights
Any substantial interruption of an adverse possession before the lapse of the period required to constitute the statutory bar restores the seisin of the rightful owners of the legal title, and, in order to give rise to the statutory bar thereafter, a new entry and disseisin is necessary. “Wood, Lim. Act. 574, 576; Haag v. Delorme, 30 Wis. 594. The running of the statute may be interrupted if the possession ceases to be adverse, although possession in fact continues. If the defendant had made a quitclaim to his coheirs of all his right, title, and interest in the premises acquired under the particular deeds under which he claims,
The judgment in question operated and had in law the effect of a release by the defendant of all right, title, and interest acquired by him under the deeds upon which he now seeks to found his defense under the ten years statute of limitations; and it estopped him, and disabled him in law, from making any claim of title thereafter founded on those deeds. Gower v. Quinlan, 40 Mich. 572; Hoyt v. Jones, 31 Wis. 389, 402; Brolaskey v. McClain, 61 Pa. St. 166. A deed not delivered is not operative for any purpose, and is not, we think, a written instrument, within the statute in question; certainly it cannot be considered such as between parties and privies to an action in which its nondelivery and invalidity have been adjudged. For these reasons the possession of the defendant after the judgment could not become adverse for the purposes of the ten years statute without he acquired a new claim of title or made a new entry or its equivalent. Iiis subsequent possession, even if adverse, has not been under claim of title exclusive of any other right, founding such claim upon some written instrument as being a conveyance of the premises in question, and therefore the defense under sec. 4211, R. S.. has not been made out. His possession subsequent to the judgment did not continue twenty years before this action was commenced, so as to enable him to make out a defense under secs. 4213, 4215. The case of Mabary v. Dollarhide, 98 Mo. 198, and cases there cited, are distinguishable from this, in that the judgment or de
2. The silent possession of the defendant since the judgment, accompanied by no act which can amount to an ouster, will not be construed into an adverse possession. Challefoux v. Ducharme, 4 Wis. 554, 564. If the fact that the parties are cotenants is established, the burden is upon the one claiming to hold adversely to establish such a state of facts, known to his cotenant, as will amount to an adverse claim of title. Though in ordinary cases open and notorious possession is sufficient, in case of tenants in common the rule is different. Freem. Coten. § 22; Clymer's Lessee v. Dawkins, 3 How. 674; Barr v. Gratz, 4 Wheat. 213. In Sydnor v. Palmer, 29 Wis. 249, the rule is laid down that, “ where one tenant in possession, having once acknowledged the right or title of the other tenants, seeks to oust or dispossess them, and to turn his occupancy into an adverse possession or enjoyment, so as to acquire the title of the entire estate by lapse of time under the statute óf limitations, he must show xohen knowledge of such adverse claim or .of his intention so to hold was brought home to the other tenants; for from that time only will his possession be regarded as adverse.” Such is always the rule, unless the exclusive use and enjoyment or sole and uninterrupted possession and pernancy of the profits by one tenant in common have been so long continued as to give rise to the presumption of or justify the jury in finding knowledge or acquiescence on the part of the other tenants for the period prescribed by the statute. But, whatever
Our conclusion upon the whole case is that the judgment in the former suit prevents the deeds under which the defendant claims being made a basis or foundation for the ten years statute of limitations, and this view seems to be decisive of the merits of the case. As to the claim of laches, and of the defendant’s equity founded upon his having made permanent and valuable improvements on the premises, it is sufficient to say that when the judgment was rendered in the former suit, which was affirmed by this court, the defendant well knew that he had no interest in the lands except as tenant in common with the other claimants. He has not, so far as the evidence shows, been misled by the conduct of his cotenants, nor did he notify them, after the judgment in the former case, that he claimed the entirety of the premises. According to his own testimony, he kept on claiming title under the old deed, disregarding the judgment which declared it void and that it had not been delivered. He cannot now have any claim, except to an accounting between his cotenants, which may perhaps afford him a remedy, but of this we express no opinion. For these reasons the judgment of the circuit court must be reversed, and, inasmuch as there is no finding upon the question of mesne profits or damages, a new trial must be awarded.
By the Oourt.— The judgment of the circuit court is reversed, and case remanded for a new trial.