117 Neb. 671 | Neb. | 1928
This case was presented to the commission, division No. •1, and an opinion written affirming the judgment of the district court. A motion for rehearing allowed, and re-argument had before the court.
The action is in equity by two tenants in common to quiet title to certain lands against two of their cotenants and the heirs of a third cotenant. The claim of the plaintiffs is based upon adverse possession for a period of 10 years and involves a farm of 80 acres, which will hereinafter be designated as tract B. The history and chronology of the facts to be considered will now be stated.
Joseph Walter, Sr., in 1875, became the owner of the north half of the northwest quarter, section 8, township 20, range 5. This will be referred to as tract A, but it is not in controversy in this action. March 31, 1883, Joseph purchased from the Union Pacific Railroad Company the east 40 acres, and on June 9, 1888, the west 40 acres, which together constituted the south half of the northeast quarter of section 7, township 20, range 5. This is tract B, the land in controversy, and corners on tract A at the southwest. Title to both tracts was in Joseph Walter, Sr., who lived with his wife and family on tract A, farming the same in the usual manner. October 11, 1880, Joseph, Sr., and wife, Anna, entered into a contract with their son Anton whereby tract A was to be conveyed to Anton in consideration that he would deliver to Joseph and Anna Walter, so long as either of them should live, one-fourth of all crops raised thereon and permit them to occupy the north half of the house on said premises, and by the same contract personal property of the value of $150 was transferred to Anton. The deed was executed in pursuance of this contract and filed for record October 26, 1880,. and
Joseph, Sr., died December 19, 1892, leaving surviving him four children, Joseph M. II, Ignatius, Mary K, Anton, and Anna, his widow. Anna continued to live on the farm until her death September 22, 1900.
Anton Walter died February 2, 1913, leaving surviving him six children, Rosa, Frank, Anton, Mary, Joe, and Otillie, and Mary, his widow. These are all living.
Joseph M. II died June 23, 1893, leaving surviving him four children, Fannie, Victor, George, Joseph III, and Clotilda, his widow, all defendants herein.
Upon the death of Joseph, Sr., title to the tract in question descended to his four children in equal shares, subject to the interest of Anna as widow, and upon the death of Joseph M. II, his one-fourth passed to his four children and Clotilda, his widow.
At the death of Joseph M. II in 1893, therefore, the record title was vested in Ignatius, one-fourth, Mary K, one-fourth, Anton, one-fourth, and the children of Joseph II, one-fourth, subject to the rights of the widows, which are not in controversy. The title has so remained up to the present time, except that the children of Anton succeeded to his interest February 2, 1913, four of whom, Rosa, Frank, Anton, and Mary, quitclaimed to Joe and Otillie, plaintiffs, May 10, 1913. This suit was brought January 2, 1924.
As we view it, there is but one question to be determined, and that is whether or not the plaintiffs by the evidence have established an ouster of their cotenants so as to start the running of the statute of limitations.
It is well established that the possession by one cotenant of common property will be presumed to be friendly as regards his contenants, and that, before such possession can become adverse, notice by the tenant in possession that he claims title, or that his possession is hostile as against his cotenants, must be brought home to them in some plain and unequivocal manner. Beitz v. Buendiger, 144 Minn. 52. Until such notice is shown the law presumes that the possession is for the benefit of all the cotenants. 38 Cyc. 21. This notice need not be direct and positive, but may be inferred from acts of the tenant in possession, in hostility to the title of" his cotenants, of such an open and notorious character as would put a man of ordinary prudence upon his guard. Acts of the tenant, however notorious, which are reasonably consistent with the existence of title in his cotenants are not sufficient, they must be hostile and of such a character as would put a reasonable man,
With these principles in mind, we will now examine the evidence as preserved in the record.
The tract in question was not improved except by a fence enclosing it. Twenty-five or thirty acres were cultivated and the remainder used for hay and pasture. There never were any buildings, nor has any one ever lived upon the tract. It was farmed and controlled in connection with tract A as one farm by plaintiffs’ ancestor Anton until his death in 1913. Several ditches were dug upon it for the purpose of draining the lower portions. After Anton’s death the tract remained in the possession of his widow and children living on tract A and operated in the same manner as theretofore down to the present time. Theré is not a scintilla of evidence to warrant a finding that the possession of Anton was adverse to Joseph, Sr. In fact, this is not claimed by plaintiffs; nor do we find any evidence of any facts brought home to the knowledge of defendants which would’ put them upon notice of any hostile claim by Anton during his lifetime. The existence of the fence enclosing the property and the digging of the drainage ditches are both consistent with the existence of title in the cotenants and afford no inference of a hostile claim by the tenant in possession. It follows that the ouster, if any, must have taken place after Anton’s death in 1913.
The plaintiffs rely upon the following facts and circumstances to show ouster: Anton Walter died testate leaving a will devising and bequeathing his property, real and personal, to four of his children, excluding plaintiffs, Joe and Otillie, who were not mentioned in any way. The
Ignatius was a witness to his brother’s will, and on the trial was asked whether anything was said at the time the will was drawn about this 80 acres, and he answered, “Yes.” “Q. |What did you say? A. I .served notice that he could not will anything that did not belong to him.” Plaintiffs claim this answer shows conclusively that Anton was claiming the land in 1912. On cross-examination witness testified that this had reference to the east eighty. Frank Walter, Anton’s son, testified that in 1913, shortly after Anton’s death, he and Ignatius made an examination in the register of deed’s office of Dodge county, and that, opening a record book which was handed to them, containing the record of the eighty in question, he said: “Here it is; it is in grandfather’s name, and should be in your father’s name.” This was denied by Ignatius. Ignatius was named executor in Anton’s will, but declined to serve and took no further part in the
In 1893 Ignatius was administrator of his brother’s (Joseph II) estate and did not include in his inventory the undivided one-fourth of the tract in Dodge county which he now claims his brother owned. February 14, 1916, Mary Walter, widow of Anton, quitclaimed ‡0 plaintiffs
The quitclaim deed of the four other children of Joseph II to plaintiffs covered both tracts and contained the following recital: “This is to quitclaim the apparent interest of grantors as heirs at law of Anton Walter, deceased, to grantees who are also heirs at law of said deceased to effect disposition agreed on.” Anton paid the taxes on tract B which was assessed in the name of Joseph, Sr., until Anton’s death, after which it was assessed to Joseph Walter et al. After Anton’s death his widow paid the taxes until “a few years back” — “then I paid them, I always paid the taxes for her,” Joe Walter testified.
It being conceded that it is incumbent upon the plaintiffs to prove an ouster of their cotenants, what is there in all this testimony (leaving out of view for the present the effect to be given the fact of such possession and occupancy as plaintiffs have shown) which tends in any manner to establish an ouster? There is no evidence of any positive notice to defendants that plaintiffs claimed the title adversely to them until the year 1921, when Ignatius was asked for a quitclaim deed, about five years before the beginning of the suit. The statement by Ignatius to his brother that he could not will anything that did not belong to him, according to Ignatius, had reference to the east eighty, which he says his father was about to put into the will. This eighty had been conveyed by the father to Anton in 1880. The incident referred to by Frank Walter at the register of deeds’ office, when Ignatius is claimed to have said with reference to the eighty in question, “It is in grandfather’s name, and should be in your father’s name,” might be evidence against Ignatius, but not against the other defendants. Ignatius denies this incident in toto. The same may be said of the fact that Ignatius, as administrator of the estate of Joseph II, in Knox county, failed to inclúde in the inventory the one-
The deed of Mary Walter to plaintiffs cannot be considered as notice because it was dated February 14, 1916, and, therefore, within the ten year period.
We are, therefore, brought to the question whether or not the possession of plaintiffs and their ancestor was of such a notorious and exclusive character as to amount to an ouster. What was the nature of this possession and in whom was it vested? It must be borne in mind that we are not concerned with the possession of tract A beyond the fact that it was the home place and had always been farmed in connection with the land in dispute as one tract. At the death of Joseph, Sr., the title and ownership of A was in Anton, while that of B was in Joseph, Sr. Tract A was the homestead of Joseph and his wife, Anna, by virtue of the reservation in their deed to Anton; and tract B was a part of the home farm of Joseph, Sr., and was subject to the homestead right of his widow, Anna, who was entitled to the possession thereof during herl life. It would seem, therefore, that the possession of tract B, as well as tract A, would be referable to Anna’s title as widow, and not to plaintiffs and other children of Anton who lived with her and assisted her in carrying on the farm. She died in 1900, after which event, Anton became the full owner of tract A and of one-fourth of tract B and continued in possession of both tracts until his death in 1913, since which time his widow and heirs have remained in possession making no claim brought home to the notice of the defendants of any hostility to their interests as heirs of Joseph, Sr., along with plaintiffs’ ancestor, Anton, until 1921. There were no buildings upon tract B, no one has ever lived upon it, and the only improvements placed thereon by plaintiffs or their ancestor were the digging of certain ditches to drain the lower portions of the tract, which was done by Joe some time after 1914.
We find nothing in the character of this possession calculated to give notice of a hostile claim by plaintiffs. The
Plaintiffs confidently rely upon the case of Lund v. Nelson, 89 Neb. 449, and quote the syllabus thereof in the following language: “Where one tenant in common enters upon the whole estate, improves it, takes the profits, pays all the taxes, makes it his home, and claims the whole for more than the period of the statute of limitations, an actual ouster should be presumed although not otherwise proved.”
As applied to the facts of that case the statement of the law is doubtless correct, but what were the facts to which it was applied? Plaintiffs’ ancestor had purchased in 1890 from the defendant Renstrom a twenty-four twenty-fifths interest in the land in question, had taken possession, built buildings, made other extensive improvements, and made the same his home up to the time of his death, after which his family remained in possession, constructing buildings and farming it as owners, paying the taxes and receiving the income; the names of the original owners of the one twenty-fifth interest were unknown, and the action was against the original grantor, Renstrom. It was said in a concurring opinion by Root, J., that the appellant Renstrom “had no title to or interest in this land, is not a tenant in common, and the question of adverse possession does not arise in the case.” It thus appears that there was a difference of opinion among the judges as to the existence of any title in the defendants, but the case was decided upon the proposition that the general rule, that the possession of one tenant in common is the possession of all, was not applicable to that case, and that ouster would be presumed from the state of facts proved. We are not disposed to give effect to so general a statement of the rule beyond the facts of the case in which it was announced.
Finally, it is contended that defendants have been guilty of laches in failing to claim their rights as cotenants. We think the doctrine of laches has no application here.
It follows that the opinion by the commission must be set aside and the judgment of the district court reversed, and the cause remanded, with instructions to decree partition and an accounting as prayed in the cross-petition.
Reversed.