Barrett v. Stradl

41 N.W. 439, 73 Wis. 385, 1889 Wisc. LEXIS 163

• Court: Wisconsin Supreme Court
• Decided: January 29, 1889
• Status: Published

Opinion

Taylob, J.

The material facts as to the title of the lands in question are as follows: Patrick Barrett, the father of plaintiff, became possessed of, and the owner in fee of, the the lands described in the complaint in 1S56. In 1874 he conveyed by warranty deed to his son-in-law John Nash, and three days after the conveyance to Nash he (Nash) convev'ed the same land to Catherine Barrett, the wife of said Patrick Barrett, and plaintiff’s mother. The mother died intestate in June, 1875, while living on the premises,, and without having conveyed the same. Patrick Barrett, the father and husband, also lived on the land with his wife, Catherine Barrett, at the time of her death, and continued to occupy said land after the death of his wife until February 7, 1877, when he conveyed by warranty deed to one "Wenzel Kadlic, for the consideration of $2,100, taking a mortgage in part payment for the sum of $1,600. Kadlic occupied the premises until the year 1880, and on April 19, 1880, he conveyed the land to the defendant by warranty deed, for the sum of $1,650, and as a part of this consideration the defendant assumed the payment of the $1,600 mortgage given by Kadlic to Barrett. Upon receiving this deed the defendant went into the immediate possession of the land, claiming to own the same, and he remained in possession up to the present time, making permanent improvements on the land, and has made payments on the $1,600 mortgage so as to reduce the amount of the same to $1,200 or less when this action was commenced. Patrick Barrett died on February 5, 1885.

These facts show that Patrick Barrett at the time he sold the premises to Kadlic had only a life estate in the same as a tenant by the curtesy of his wife, Catherine Barrett. There is no contention on the part of the defendant and respondent but that the plaintiff was the owner of the undivided two-fifths of the premises at the time this action was commenced, nor that the defendant withheld the possession from him as alleged in his complaint. The real controversy between the parties is whether the possession of the defendant was of such a character as to entitle him to recover for permanent improvements made by him on the lands, under sec. 3096, R. S. 1878. The part of the section applicable to the controversy in this case reads as follows: “In every case where a recovery shall be had of any land, on which the party in possession, or those under whom he claims, while holding adversely by color of title asserted in good faith, founded on descent or any written instrument, shall have made permanent and valuable improvements, or shall have paid taxes assessed, such party, for himself and for the benefit of those under whom he claims, shall be entitled to have from the plaintiff, his heirs or assigns, if he insist upon his recovery, the value of such improvements at the time the verdict or decision against him. is given, and the amount paid for taxes, with interest from the date of the payment, to be assessed and recovered as hereinafter provided, and for the pajwnent thereof shall have a lien on the real estate so recovered.” Under this section the court below held that the defendant could only recover, in any event, for improvements made by the defendant on said lands, and for the taxes paid thereon, between the date of the death of Patrick Barrett and the date of the commencement of this action.

The principal contention of the learned counsel for the appellant is that the defendant cannot set up that he was in possession holding adversely by color of title asserted in good faith, because he entered and held by a conveyance from the grantee of Patrick Barrett, who had only a life estate in the premises, made during the life-time of said Barrett. The claim of the learned counsel is that one who' enters upon the possession of real estate by deed from a person holding only a life estate in the premises cannot, so far, at least, as those entitled to the reversion are concerned, be in possession under claim of title, holding adversely to them, within the meaning of the statute. The learned circuit judge held with the counsel for the plaintiff so far as to hold that the possession of the defendant could not be adverse as against those owning the reversion during the life-time of the person owning the life estate, either for the purpose of establishing a title to the land by adverse possession, or for establishing a claim for improvements made on the land during the life of such person; and on the trial limited the defendant in his claim for improvements and taxes to such as were made and paid after the death of Barrett, the owner of the life estate, and before the commencement of plaintiff’s action.

The contention of the learned counsel for the appellant, that a person entering into the possession of land under a conveyance from a person having only a life estate therein cannot hold adversely to the person entitled to the remainder, during the life-time of the person owning the life estate, so as to set the statute of limitations running against the remainder-man, is well settled by the authorities in other states, and is fully recognized by this court. See Wiesner v. Zaun, 39 Wis. 189. The reason of this rule is based upon the fact that the remainder-man cannot, during the life of the person holding the life estate, bring an action against the person in possession under such life tenant, to recover possession of the premises; and it would be absurd, therefore, to bar the right of the remainder-man by a possession which he has no right to object to, and to prevent which he has no remedy by action.

We think it is equally well settled that when a person enters under a deed from the person who holds the life estate, which on its face conveys an estate in fee, and when the grantor intends to convey the fee, and the grantee supposes he is getting a conveyance of the fee, the person entering under such deed holds in fact adversely to all the world, but he cannot avail himself of the rights of an adverse possession under the statute as against the remaincler-man during the life of the owner of the life estate, but immediately upon the death of the person holding the life estate such possession, if continued, becomes adverse to the remainder-man. In the language of the court in Sands v. Hughes, 53 N. Y. 294: “There is no rule which prevents a hostile title being acquired, or an adverse possession being originated, during the running of an assessment lease (granting a limited estate), which possession would ripen into a title in twenty years after the end of the lease.” See, also, Christie v. Gage, 71 N. Y. 193; Millard v. McMullin, 68 N. Y. 345; Fleming v. Burnham, 100 N. Y. 1, 8, 12; Jackson v. Schoonmaker, 4 ; Clarke v. Hughes, 13 Barb. 147; Miller v. Ewing, 6 Cush. 34; Jackson v. Harsen, 7 Cow. 323, 327; Gernet v. Lynn, 31 Pa. St. 94; 1 Am. & Eng. Ency. Law, 237, and cases cited in note 1, and 238, note 2. The rule established in the cases above cited was adopted by this court in the case of Wiesner v. Zaun, 39 Wis. 188, 203, 204. The reason of the latter ruléis that immediately on the death of the life tenant the remainder-man may maintain an action to recover the possession from the person'in possession claiming adversely.

The rule invoked by the counsel for the appellant, that a person entering under a tenant in possession, even though he take a deed in fee, cannot hold adversely to the landlord, does not a.pply to the case of a person entering under a deed from a person in possession owning a life estate. This rule only applies to the case where the person in possession holds the conventional relation of tenant to the owner of the fee, and not to the case of a person holding a life or other limited estate derived from some other source than from the owner of the reversion. On this point see Saunders v. Hanes, 44 N. Y. 365; Christie v. Gage, 71 N. Y. 193; Jackson v. Harsen, 7 Cow. 323, 326.

The above authorities clearly negative the claim made by the learned counsel for the appellant that the defendant produced no evidence on the trial which tended to show that he was in possession of the premises, holding them adversely to the claim of the plaintiff, at the time he made the improvements for which he claimed pay.

It is further urged by the learned counsel for the appellant that the special verdict is imperfect in not expressly finding that the defendant was in possession holding adversely to the plaintiff at the time the improvements were made. On the part of the respondent it is claimed that there was no request that such a finding should be included in the special verdict. It is also insisted that the findings numbered 12, IS, and 14 are equivalent to an express finding of the fact that the defendant was in possession holding adversely to the claim of the plaintiff when the improvements for which he was allowed were made. These findings, if sustained by the evidence, show that during the time in question the defendant had exclusive possession of the premises, that he claimed to be the sole owner thereof under and by virtue of the deed to him from Kadlic, and that he asserted his title founded on said deed in good faith. We are clearly of the opinion that these findings are equivalent to an express finding that he was in possession, holding adversely under color of title asserted in good faith, when the improvements were made.

The only other question bearing upon this point is whether these findings are supported by the evidence. It seems to us that the evidence is clear and undisputed that the defendant, when he bought the land from Kadlic, believed he was getting a good title in fee to the premises. He paid a full consideration for a perfect title in fee, and he testifies that he paid a man to examine the title for him previous to his purchase, and that such person reported to him that the title was perfect, and the deed given and taken was a deed purporting to convey the estate in fee. After his purchase, and down to the death of the tenant for life, his assertion of title was constant, as evidenced by his possession and his continuing to pay upon the mortgage he had assumed to pay as a part of the purchase price. There certainly is no evidence which tends to show that he abandoned his claim of title under his deed from Kadlic, and all the evidence shows that his possession continued under claim and color of title under said deed after the death of Barrett, the owner of the life estate. Such possession was therefore adverse to the claim of the plaintiff after the death of Barrett, by all the authorities.

It is further insisted by counsel for appellant that the evidence shows conclusively that not long after the death of Barrett the defendant became possessed of such facts regarding the defect of his own title and the validity of the title of plaintiff, that he could not thereafter hold adversely to the claim of the plaintiff, and consequently the improvements made were not recoverable under the statute. If the evidence in the case shows, as it clearly does, that there was a time when the defendant was in possession of the land in question, holding adversely to the plaintiff under color of title asserted in good faith, and such possession continued down to the commencement of the action, it will be presumed to have continued an adverse holding, unless some evidence is produced which shows that the character of the possession was changed to one recognizing the title of the plaintiff. Whether there was such a change in the relation of the defendant to plaintiff previous to his making the improvements for which he recovered compensation was a question of fact for the jury. After reading the evidence, we are not prepared to say that the claim of the plaintiff is clearly established. The record would seem to indicate that the case was tried on the part of the plaintiff, upon the theory that, if the defendant had at any time notice that the plaintiff claimed to own the land in controversy, no improvements made on the land after such notice by the defendant could be made a charge against the plaintiff. This is clearly indicated by the request made by the plaintiff to submit to the jury the following question: “ During the period from February 5, 1885, until December 20, 1880, did the defendant know, while making the improvements made by him during that time, that his title to the premises in question was contested or disputed by plaintiff claiming a superior title to them?” This question was not submitted, and under the decisions of this court it was an immaterial question. See Zwietusch v. Watkins, 61 Wis. 615, 620. To defeat a claim for improvements under the statute, when the evidence shows that the defendant entered under color of title asserted in good faith and has held adversely to the plaintiff, the evidence must show that the adverse possession is no longer asserted in good faith; that is, that the adverse possession has been interrupted in some way, either by abandonment or otherwise, so that the continued possession is no longer adverse to the real owner. That notice of claim of superior title by the plaintiff, or the commencement of an action to recover the premises, does not in itself interrupt the adverse possession of the defendant or change his attitude in regard to his adverse claim, is fully sustained by the decisions of courts outside of this state, as well as by the decisions of this court in the case of Zwietusch v. Watkins, 61 Wis. 615. Workman v. Guthrie, 29 Pa. St. 495, 513; Moore v. Greene, 19 How. 71; Langford v. Poppe, 56 Cal. 73, 76; Jackson v. Haviland, 13 Johns. 229, 234; Kennedy's Heirs v. Reynolds, 27 Ala. 364; Ferguson v. Bartholomew, 67 Mo. 212. Upon this point of notice of an adverse claim as affecting the good faith of the party claiming to hold adverse^, see, also, Warren v. Putnam, 68 Wis. 481, 488; Fleming v. Sherry, 72 Wis. 503, 507, 508.

It is the entry upon the possession under the color of title asserted in good faith which creates the possession which entitles the possessor to recover for his improvements; and it is unnecessary that the person making the entry should believe that his title was superior to every other title to the property at the time of making his entry, in order to make his possession adverse; nor does a subsequently acquired knowledge that there is a better title in some other person necessarily change the nature of his possession from an adverse possession to a possession subordinate to the true title. In order to change the nature of the possession, there must not only be a knowledge that there is a better title, but there must be an express or implied yielding to such superior title. 1 Am. & Eng. Ency. Law; 277, 279, 292; Dothard v. Denson, 72 Ala. 541, 545; McCagg v. Heacock, 42 Ill. 157; Rawson v. Fox, 65 Ill. 200; Russell v. Mandell, 73 Ill. 136, 137; Smith v. Ferguson, 91 Ill. 304, 311; Stubblefield v. Borders, 92 Ill. 279; Ewing v. Burnet, 11 Pet. 41; Wright v. Mattison, 18 How. 50, 57; Pillow v. Roberts, 13 How. 472. The cases cited by the learned counsel for the appellant, which hold that the defendant cannot recover for improvements made aftér he has knowledge of an adverse claim, were cases arising under statutes differing from ours. This is especially so with cases in Illinois. See 1 Starr & 0. Ann. Stats. Ill. 994. The Illinois statute expressly provides that the defendant shall not recover for improvements made after notice of the claim of the real owner, and it also defines what shall constitute such notice. It must be admitted that what would constitute an adverse possession so as to set the statute running in favor of the possessor against the real owner, under sec. 4211, R. S., might not be sufficient to constitute such an adverse possession as would entitle the possessor to recover for improvements, under sec. 3096, R. S. Under sec. 4211, an entry under color of title, claiming title exclusive of any other right, is all that is required. Under sec. 3096, the possessor must hold by color of title asserted in good faith. It seems to us very clear, from all' the evidence in the case, that the defendant took possession of said lands by color of title, and that he asserted that title in good faith, and. that such claim and assertion of title was not abandoned by the defendant before this action was commenced, and, if we are to believe he verified his answer believing it to be true, he asserted such title after the commencement of this action.

It is urged by the counsel for the appellant that the evidence clearly shows that the defendant had, before making the improvements on the land for which he has recovered, abandoned his adverse holding and recognized the ownership and title of the plaintiff. The jury have found against this claim, and npon the whole evidence we cannot say the finding of the jury on this point is wholly unsupported by the evidence.

It is also urged that the jury assessed the - improvements at a sum greatly in excess of their real value to the farm. We can only say that the verdict is sustained by the evidence introduced by the defendant, and, the circuit judge having refused to set aside the verdict on that ground, we do not feel authorized to reverse the judgment for that cause.

By the Court.— The judgment of the circuit court is affirmed.