Bessler v. Powder River Gold Dredg. Co.

185 P. 753, 95 Or. 271, 1919 Ore. LEXIS 255

• Court: Oregon Supreme Court
• Decided: December 2, 1919
• Status: Published

Opinions

BEAN, J.

At the appropriate time counsel for defendant submitted a motion for a judgment of nonsuit and at the close of all the testimony requested the court to direct the jury to return a verdict in favor of defendant. These requests were denied. The proposition thus raised is the pivotal question in the case. Several exceptions were saved to the ruling of the court relating to the introduction of testimony but in so far as they are deemed important they hinge upon the main issue. It is the contention of defendant that the possession of the land in controversy held by the plaintiff and his predecessors was not adverse, but that the entry was made under an executory contract to purchase the premises and that each held in subordination to the title of defendant’s predecessor, and recognized such title. Plaintiff contends that the possession of Brown, Phillips and Geddes became adverse in March, 1906, by virtue of the payment of the purchase price in full, and their possession with their successors in interest so continued until July 18, 1916, thus being in adverse possession for more than ten years.

1. There was an abundance of evidence tending to show that the plaintiff and his predecessors held possession of the land under a claim of right or ownership for more than the statutory period of ten years, using the same for slaughter-house purposes and erecting buildings and making other improvements thereon and cultivating a portion thereof during the latter part of that time; that all the essential elements of adverse possession were present. The terms “claim of right,” “claim of title” and “claim of ownership” when used in the books to express adverse intent mean nothing more than the intention of the disseisor to appropriate and use the land as his own to the exclusion of all others, irrespective of any semblance or shadow of actual title or right: 1 R. C. L., p. 706, § 19; Crowder v. Doe, 162 Ala. 151 (50 South. 230, 136 Am. St. Rep. 17); Power v. Kitching (N. D.), 88 Am. St. Rep. 701, note at page 703.

2. The possession of the partnership of Brown, Phillips and G-eddes, the vendees, under an executory contract for the purchase of the land from the Sumpter Lumber Company, the vendor, after the full payment of the consideration in March, 1906, was presumptively adverse to the vendor and its successor who had notice of the vendees’ rights: Anderson v. McCormick, 18 Or. 301, 303 (22 Pac. 1062); Ambrose v. Huntington, 34 Or. 484, 489 (56 Pac. 513); West v. Edwards, 41 Or. 609, 614 (69 Pac. 992); Bessler v. Powder River Gold Dredging Co., 90 Or. 663 (176 Pac. 791, 178 Pac. 237); Watts v. Witt, 39 S. C. 356 (17 S. E. 822); Woods v. Montevallo etc. Co., 84 Ala. 560 (3 South. 475, 5 Am. St. Rep. 393); La Frombois v. Jackson, 8 Cow. (N. Y.) 589 (18 Am. Dec. 463); note to Jasperson v. Scharnikow (U. S. C. C. A..), 15 L. R. A. (N. S.) 1178, 1236. The rule is stated in R. C. L., page 751, Section 74, thus;

“But the possession of the vendee of land, under contract to purchase, whether oral or written, after payment of the entire purchase money, is presumptively adverse to that of his vendor from the time that such payment was made. Nor is his possession prevented from being adverse by his knowledge of a defect in the title, or his subsequent demand for a deed; * * ”

It is stated in 2 C. J., page 154, Section 273, as follows:

“While the law seems to be otherwise in some states, the decided weight of authority is to the effect that a vendee of land in possession under a contract of sale by parol or in writing holds adversely to his vendor from the moment of payment or performance of the conditions of the contract, although a deed is not executed, and if this possession is continued for the statutory period the purchaser acquires title by the statute of limitations. However, the vendee may, by express recognition of the vendor’s title, defeat the adverse character of his possession.”

The rule is announced that under an executory contract for the purchase of land where the entire consideration has been paid the vendee is not required to give further notice to his vendor that he holds adversely, the payment of the purchase price in itself being notice: Normant v. Eureka County, 98 Ala. 181 (12 South. 454, 39 Am. St. Rep. 45); Watts v. Witt, 39 S. C. 356 (17 S. E. 822). The knowledge of the members of the partnership, the vendees, that their title was not perfect would not prevent their possession from being hostile, neither would their demand for a deed made in the former suit work such a hindrance. The suit was a solemn assertion in the court that they claimed the right to the land.

In Anderson v. McCormick, 18 Or. 301, 303 (22 Pac. 1062), this court speaking by Mr. Justice Strahan adopted the rule which prevails in most of the states of the Union. The following language was there used about which there can be no misunderstanding:

“The rule seems to be that where a purchaser enters into possession of land under an executory contract which leaves the legal title in his vendor, and contemplates a further conveyance of the complete title, his entry will be in subordination to the legal title; and in such case, as also in the case of lessee and other similar cases, where one is under the owner of the legal title, a privity exists which precludes the idea of a hostile or tortious possession that could silently ripen into an adverse possession under the statute of limitations: Core v. Faupel, 24 W. Va. 238; Jackson v. Spear, 7 Wend. (N. Y.) 401; Williams v. Snidow, 4 Leigh (Va.), 14; Gay v. Moffit, 2 Bibb. (Ky.) 506 (5 Am. Dec. 633); Keys v. Mason, 44 Tex. 140; Pratt v. Caufield, 67 Mo. 50. But where the vendee has executed his part of the agreement by the payment of the purchase money, his possession is from that time adverse to the vendor. ’ ’

There has been no deviation from such announcement in this state.

3. Possession taken under an invalid contract, if continued the requisite period, will ripen into title, and such title will be equally as effective as if the same had been acquired under a valid contract: Newsome v. Snow, 91 Ala. 641 (8 South. 377, 24 Am. St. Rep. 934); Bryan v. Atwater, 5 Day (Conn.), 181 (5 Am. Dec. 136); Woods v. Montevallo etc. Co., 84 Ala. 560 (3 South. 475, 5 Am. St. Rep. 393).

4, 5. The Sumpter Lumber Company knew or should have known of the possession and claim of plaintiff and his predecessors. An owner of premises is bound to take notice of the nature and extent of possession by claimant. The party holding the superior title is not in the condition of an ordinary and casual observer, but must diligently look to his own interests, know the boundaries of his own land, and ascertain the extent, meaning and locality of any settlement made within them without his authority: 2 C. J., p. 268, § 597%, and note. Continued, unexplained possession of land for a long period of time is evidence that the possession is adverse, and makes out a prima facie case, and until rebutted by some satisfactory evidence is conclusive as to the nature of the possession: Smith v. Badura, 70 Or. 58, 62 (139 Pac. 107); Dunnigan, v. Wood, 58 Or. 119, 124 (112 Pac. 531).

The position of the defendant is in effect that before possession taken by a vendee under a contract to purchase real property, although the purchase price has been paid in full, can be claimed to be adverse the contract must be such that upon performance by the vendee he can in equity compel a conveyance of the land. "We are unable to agree with this claim.

6. Adverse possession is not based on title, but is in hostility to the true title. Title by adverse possession is not dependent on validity or invalidity of any contract of purchase or the presence or absence of a remedy in equity for specific performance. Title by adverse possession is acquired by the open, notorious, exclusive and uninterrupted antagonistic possession under a claim of ownership of land belonging to another for the full period of ten years, by a person whose claim of ownership would not be in violation of some contractual duty owing by him to the owner of the land, such as a tenant holding under a lease or the like. It must be in hostility to the true title. Where there is title there is no reason to invoke the doctrine of adverse possession. The plaintiff in this case bases his right to the land upon the principle of law that whereas he and his grantors or predecessors have had such adverse possession of the premises in controversy for the statutory period, the title to the premises has been lost to the defendant and has become vested in the plaintiff.

7. It is unnecessary in this case for the court to pass upon the facts forming- the basis of plaintiff’s title. It is sufficient for us to find that the testimony in the case tends to support the allegations of plaintiff’s complaint and reply. The pleadings in the case were before this court in the former appeal and were held to be sufficient, if true, to sustain plaintiff’s title to the land. The ruling upon the former appeal has become the law of this case.

8. The claim of adverse possession might also be based upon the entry and possession of Smith and Mack on May 1, 1906, when they purchased the premises of Phillips, Brown and Geddes and paid in full therefor. The rule in regard to this second entry and possession of Smith and Mack is stated in 2 C. J., page 155, Section 276, thus:

“But after a purchaser from the vendee has paid his purchase money his continued possession is deemed adverse to the vendee and consequently to the original vendor, although the latter has not been paid, * * ”

The testimony tended to show that Smith and Mack bought the land in the belief that the partnership owned the same and without any knowledge on their part that the Sumpter Lumber Company from whom the partnership had purchased had not executed a deed. Smith and Mack were not in privity with the Sumpter Lumber Company and knew nothing about its claim until the deal was closed and they had paid for the property. Under the circumstances disclosed by the testimony the possession of Smith and Mack clearly comes within the rule stated in 2 C. J. 155. See also Montgomery County v. Severson, 64 Iowa, 326 (17 N. W. 197, 20 N. W. 458). The latter case was a suit instituted by Montgomery County to recover the possession of lands from the defendants which had been sold by the county to a company known as the American Emigrant Company and by it sold to various defendants or their predecessors in interest. The county had entered into a contract selling to the Emigrant Company the swamp-lands situated in the county, and subsequently instituted a suit against that company to recover the lands and to set aside and annul the contract on the ground that it was void for the reason that the county had no authority to make it. In this suit the county prevailed. It then sought to recover from the defendants the lands which had been sold to them by the Emigrant Company, paid for in full and of which, they had taken possession. The defendants set up as a defense the statute of limitations and in discussing the availability of the statute of limitations in that case the court says on page 198 of the opinion (64 Iowa, 328, 17 N. W. 198):

“In each case as we have shown there was a contract for the sale of the lands and the respective defendants, or their grantors entered into the possession and held and improved the respective tracts as the owner thereof. They did not, it is true, hold the legal title or claim to hold it until the deeds to them were executed by the Emigrant Company. Until then they claimed but an equity in the lands which could be enforced upon the payment of the purchase money. It is not necessary for one relying upon the statute of limitations to show a legal title. A claim of right to the land is sufficient and this claim need not be based upon a legal title or a paper title. It may rest in parol. A claim based upon an equity is sufficient.”

9. The testimony in the present case tended to indicate that Phillips, Brown and Geddes in selling the land to Smith and Mack represented that they were the owners of the land and promised to convey that ownership to the purchasers; that after they were unable to get the deed promised by the Sumpter Lumber Company, they paid Smith and Mack $500 to release them from their obligation to secure a conveyance; that Smith and Mack accepted this sum with the understanding that it would not affect their title to the land nor their right to the premises. The partnership was obligated to furnish the deed, and, having failed to do so they had a right to secure a release from that obligation without in any way changing the rights of the parties to the land itself, and this they did in order to save themselves1 from the cost of obtaining a deed, as well as the damages sustained by Smith and Mack through their failure to comply with their agreement. The testimony tended to show and the jury evidently found in effect that Smith and Mack purchased the premises, paying therefor, and expecting to obtain a conveyance of the title thereto, but the partnership found that a deed could not be executed in accordance with their agreement and paid Smith and Mack the amount agreed upon for the difference between what they got and what they should have received according to terms of the sale to them by the partnership. The purchasers from the partnership obtained all the right to the land that this firm theretofore held. When this settlement was made Smith and Mack did not surrender any interest in the premises.

From a careful reading of the testimony in the case we find that there was ample evidence to sustain the allegations made by plaintiff in his pleadings. There was no error in denying the motion for judgment of nonsuit, or in refusing to direct a verdict in favor of defendant.

The question of the effect of the decree in the former suit was determined upon the first appeal in this case in an opinion by Mr. Justice Benson and also one by Mr. Justice Burnett upon a petition for a rehearing, and further comment would be of no avail.

10. The defendant complains, of the verdict for $15,000 as excessive. In addition to the buildings and other improvements which the testimony tended to prove were destroyed and for which plaintiff claimed $3,000 and about which there is little dispute, the evidence on behalf of plaintiff tended to show that the land in controversy is located in an old bed of the river, and was dredged to the depth of from 24 to 30 feet; that the different tests made in prospecting in the “old bed” a short distance above the Bessler tract showed approximately that the gravel would yield from 9.52 cents to 27.55 cents in gold per cubic yard. The testimony of Mr. Derby, the manager of the defendant company, in regard to the value of the ore extracted from the land, was as follows:

“Q. Do you know about how much the land in controversy produced?

“A. I know approximately.

“Q. How much?

“A. Approximately a gross of twenty thousand dollars, $20,184.”

The amount awarded by the jury was $15,000 including compensation for the destruction of the buildings and other structures. The question was submitted to the jury under- a charge by the court to which we find no exception on behalf of defendant as to the measure of damages. Under these conditions it cannot be said as a matter of law that the verdict is excessive. Obviously the jury did not deduct as much for the cost of dredging the land as the defendant claimed. They apparently considered that as the defendant was extracting gold from the adjoining land the margin of at least $8,184 was a fair value of the dredging. The case was plainly and fairly submitted to the jury by the instructions of the court.

After careful consideration, finding no error in the record the judgment of the lower court is affirmed.

Affirmed,

Rehearing denied February 17, 1920.