22 Or. 77 | Or. | 1892
This is an action in ejectment brought by the plaintiffs against the defendant to recover the possession of certain lands described in the complaint.
The answer denies all the material matters alleged except the possession of the defendant, and for a separate answer alleges: “That neither of said plaintiffs, nor any ancestor, predecessor or grantor of either of them was seized or possessed of any part of said lands within ten years next before the commencement of said action.” And “that defendant and his grantors were for more than thirteen years immediately before the commencement of said action in the visible, open, notorious, uninterrupted, and exclusive possession of the whole and every part of said lands under a claim of right thereto, and also, under color of title by deed, claiming to own the whole and every part of the same in fee simple, adversely to each and both of said plaintiffs.”
The reply puts in issue all the material allegations of the separate defenses. Issue being thus joined, a trial was had, which resulted in a verdict and judgment in favor of the defendant. From this judgment the plaintiffs appeal to
The point of contention for the plaintiffs is, that the court, in the admission of the evidence, and in giving the .instructions excepted to, proceeded upon the theory that only a transfer of a claim of right and possession by Webster to Voile was necessary to continue the running of the .statute of limitation. As counsel for the plaintiffs proceeded to discuss the assignments of error in the reverse order in which they are stated in the bill of exceptions, we shall pursue the same order. Before, however, referring to .the particular instructions by which it is claimed the trial •court insufficiently defined'or misapplied the doctrine of privity between successive adverse holders, it will be better .to briefly review some preceding instructions to enable us ,to better understand the instructions specially criticised. The trial court after stating the issues and explaining adverse possession, among other things, charged the jury To the effect that there was no evidence to show that the defendant’s grantors or predecessors ever had a color of title, or any conveyance in writing to the premises in controversy; that at the time of the sale of the land by Thomas to Webster, Thomas as a part of the transaction sold Webster the disputed tract, and that Webster went into the possession of the whole of it, but that by mistake of the par
We now come to the instructions to which the exceptions are taken, and as to which it is urged the doctrine of tacking as between successive adverse holders is not properly defined. The trial court said: “ In this case the evidence tends to show that Webster’s possession, if any, of the disputed tract, was only from 1877 to 1884, or about seven years, which was not long enough, even if adverse, to give him a title by adverse possession. And the same may be said of Voile, whose possession the evidence tends to show was from 1884 to 1889, or about five years. So that in order to constitute the full period, the time of Webster’s possession must be added and joined to that of Voile, even if the two were adverse. In order to justify
It is claimed that these instructions offer an insufficient and misleading definition of privity between successive adverse holders of real property, in this, that they disregard the element of contract necessary to be present to show privity between Webster and Voile as successive adverse holders of the land in dispute. But this is not so. The evidence showed that it was the tract of land including the land in dispute which the contract covered in the contemplation of the parties at each successive sale, although the description in their deeds did not embrace it.
By their agreements it was included, sold and bought as a part of the tract, but there is no pretense that there was any conveyance of it by deed. In a word, their deeds did not cover all the land that the parties had in mind and supposed they had sold when the respective sales were made; but their conduct in relation to the disputed tract indicates that it was taken possession of with the other land as a part of the consideration for such sales; that they entered upon and occupied the land, claiming it as their
To establish privity of possession, the later occupant must enter under the prior one, and must obtain his possession either by purchase or deed. “ Where the possession is actual,” said Deady, J., “it may commence in parol without deed or writing; and I am of the opinion, both upon reason and authority, that it may be transferred or pass from one occupant to another by a parol bargain and sale accompanied by delivery. All the law requires is continuity of possession, where it is actual.” (Shuffleton v. Nelson, 2 Saw. 545.)
Unless the successive adverse possessions are connected by privity, the true owner is restored to his possession when the first occupant quits; and an entry afterwards by another wrongfully constitutes a new disseisin. But if such successive possessions are connected by any agreement or understanding which has for its object a transfer of the rights of the possessor, and is accompanied by a transfer of possession in fact, it is sufficient.
“Doubtless,” said Butler, J., “the possession must be connected and continuous, so that the possession of the true owner shall not constructively intervene between them; hut such continuity and connection may be effected by any conveyance or agreement or understanding which has for its object a transfer of the rights of the possessor, or of his possession, and is accompanied by a transfer of possession in fact.” (Smith v. Chapin, 31 Conn. 531.)
In McNeeley v. Langan, 22 Ohio St. 32, the court says: “ The mode adopted for the transfer of possession may give rise to questions between the parties to the transfer; but as respects the rights of third persons, against whom the possession is held adversely, it seems to us to he immaterial, if
When it was shown that Webster obtained the possession of the land in dispute in 1877, and held possession of it, claiming it as his own, until 1884, at which time Voile obtained the possession of it, it became important to connect him with Webster in order to make a connected and continuous possession for ten years. The evidence upon this point has been stated. It shows that Voile entered into possession under an agreement or understanding which included the land in dispute. It is true, that agreement was verbal and that the conveyance which was executed in pursuance of it failed to embrace the land in dispute; nevertheless that agreement included it and established privity between Webster and Voile, so that it connected the successive adverse possessions of Webster and Voile. That contract was sufficient to convey Webster’s possession, and, when accompanied by a transfer of possession in fact, it was sufficient to make their joint possession continuous. The bargain and sale was of the whole tract, including the part of it in controversy, which was omitted by mistake in the deed, but nevertheless there was a bargain and sale of it, accompanied by a delivery of possession, which suffices to establish privity of possession between such occupants. When the court in its instructions charged the jury that in order to connect the adverse possessions of Webster and Voile, they must find from the evidence that Webster had the adverse possession of the land in dispute and transferred it to Voile, and that Voile’s possession was taken not simply under a Naim of right, “ but under a claim of right received from Webster,” and that the two periods of their possession cannot be joined unless privity exists between them, it plainly meant, and especially in view of the preceding instructions and their explanatory phrases, that the jury must find from the evidence that their successive adverse
What is the claim of right which Voile received from Webster but the possession of the land in dispute under the verbal agreement for the whole tract of which it was a part? It is true, the verbal agreement did not convey the title to such tract or any part of it, but it was sufficient to convey any possessory rights that Webster had to it, or any portion of it, and therefore was sufficient to transfer all his possessory rights to that portion of the tract not included in his deed, when accompanied by a transfer of possession in fact.
In view of the facts, it is impossible to construe or understand the instructions otherwise. The court did not proceed on the theory in the admission of the evidence, or in giving its instructions, or in refusing those asked by plaintiffs, that there must not be privity of possession between the occupants, or that there could be such privity without some agreement or understanding, written or verbal. Hence, there was no error in receiving such evidence, or in giving the instructions excepted to, or in refusing those asked, for they all involve the same contention as error.
As it seems to us, the vice of counsel’s argument is, that they detach an isolated portion of the instructions, and by a purely verbal criticism seek to draw the inference from it, without regard to explanatory phrases or paragraphs, that the trial court disregarded the element of contract in applying the doctrine of privity between successiveadverseholders of the possession of real property. Having reached this conclusion from the instruction, when they came to criticise or make their objection against the evidence, they seem to assume that the court ignored the element of contract in
“ In order to create the privity requisite to enable a subsequent occupant to tack to his possession that of a prior occupant, it is not necessary that there should be a conveyance in writing It is sufficient if it be shown that the prior occupant transferred his possession to him, even though by parol.” (Wood on Lim. § 271.)
The evidence shows that the land in dispute constitutes as much a part of the land bargained and sold as the part conveyed by deed; and although no title was conveyed to it, it was within the understanding of the parties, and possession of it was transferred. This was done by parol, and the instructions of the court properly cautioned the jury in regard to this particular.
We discover no error, and the judgment must be affirmed.