Illinois Steel Co. v. Budzisz

119 N.W. 935, 139 Wis. 281, 1909 Wisc. LEXIS 119

• Court: Wisconsin Supreme Court
• Decided: May 11, 1909
• Status: Published

Opinions

The following opinion was filed February 16, 1909:

Marshall, J.

These are assigned as errors:

(1) The court refused to grant a nonsuit, though it appeared that Budzisz was a mere successor to the title of appellant’s tenant Otto;

(2) Parol testimony was allowed, and held sufficient, to-prove the contents of the deed to Budzisz;

(3) Improper evidence was permitted which was prejudicial to appellant;

(4) Evidence offered by appellant was improperly excluded ;

(5) Improper questions were included in the special verdict ;

(6) Erroneous instructions were given to the jury.

Some other errors were assigned, but those stated sufficiently show the claims of appellant as to all matters requiring attention in deciding the appeal.

The entire field covered by the specified claims of appellant has been examined in detail without discovering any but one question which will reasonably bear discussion to any great length.

There have been very many of these cases. In the whole, almost every conceivable question relating to adverse possession and title based thereon has been discussed, elucidated, and decided. It is useless to go over any of them again, any more than incidentally, if at all. When the effect of statutes relating to the title to realty has been definitely judicially declared, the less said on the subject thereafter, by way of re-discussing the matter, the better. Erequent rediscussion of settled principles with new formulations of the legal rules involved, is liable to create confusion where none need, and it is of the utmost importance that none should, exist. Erom new discussions of principles, laid aside as settled, variations are liable to be discovered, leading to new or promoting old litigation, when no variation was intended.

The foregoing preface, perhaps, will be taken as a sufficient excuse, if any were needed, for not treating the numerous detail errors- grouped under the six heads in this opinion, or the groups in detail. Some of the matters discussed are of little moment and some are substantial. None have been overlooked, but none will be specially discussed except the one involved in the proposition hereafter stated. Such proposition is touched by several of the groups of assigned errors, but only so as to raise the single question.

Unless there is something fatal to the judgment involved in the proposition, the judgment must be affirmed. All questions otherwise, in the opinion of the court, are free from •difficulty and must be resolved in respondents’ favor.

This is the proposition which overshadows all others. The affirmative of it is strenuously contended for by the learned ■counsel for the appellant, while respondents’ counsel just as strenuously contend for the negative. If the former is right the judgment must be reversed. If the latter is right it must be affirmed.

If A., having possession of real estate as tenant of B., the •owner, conveys the same in writing to C., he having no notice -of the relation of landlord and tenant as between A. and B., and C., under his conveyance, takes possession of the prop■erty, claiming title by no right except that purported to be ■conferred by his writing, and he remains in such possession as an exclusive owner might, continuously for the full period •of ten years, — does he thereby acquire title in fact, good as against the former owner B., regardless of the relations existing between the latter and A., at the time he obtained his conveyance ?

The learned counsel for appellant points to sec. 4216, Stats. (1898), providing that “whenever the relation of landlord .and tenant shall have existed between any persons the possession of the tenant shall be deemed the possession of the landlord until the expiration of ten years from the termination of the tenancy,” etc., as if the relation of landlord and tenant, having been created, will continue as to the tenant and his successors in possession till possession shall have been delivered to the one from whom it was first obtained, actually or «constructively. On that Pulford v. Whicher, 16 Wis. 555, 45 N. W. 418; Church v. Schoonmaker, 115 N. Y. 570, 22 N. E. 575; Whiting v. Edmunds, 94 N. Y. 309; Bedlow v. New York F. D. D. Co. 112 N. Y. 263, 287, 19 N. E. 800, and similar cases.

The case cited from our own decisions does not seem to-have the remotest bearing on the proposition to be decided. Possession was obtained of the lessee by fraud, for the very purpose of commencing adverse possession, not under conveyance by the tenant in writing, or really any conveyance by him at all, but under a tax deed and through a fraudulent surrender of the landlord’s possession, in which the one going-out and the one going in participated. Under those circumstances the court, upon equitable considerations, decided that possession of the landlord did not change, but ran against thetas deed, instead of in favor thereof, under the statute of' limitations respecting such deeds.

Whiting v. Edmunds, supra, is no more in point as we view-it. The adverse claimant, as in Pulford v. Whicher, supra, did not enter, or claim possession, under a deed from the tenant. He obtained a spurious deed from a stranger, then obtained possession by obtaining an assignment of the leasehold interest, and entered ostensibly by virtue of such assignment.. That is, he took possession in fact, as successor of the tenant,, and then sought to raise the flag of an adverse possessor, under his spurious deed. How far that is from our proposition, we need not delay to point out. It is too manifest. The-learned court in the discussion, partly obiter, indulged in some remarks, particularly by reference to the ancient case-of Jackson v. Scissam, 3 Johns. 499, which, if authority at-all, would support the appellant’s contention; but it is not. Statutes of limitation with the effect given thereto as in this-state were not referred to or involved. The court formulated the extreme rule adverted to, which, as seen, had nothing to-do with the case, and referred to the ancient case of Jackson v. Scissam, supra, which merely declared and applied a common-law rule.

The other cases cited furnish no more satisfactory light. They are all based on the common-law principle that a tenant cannot impeach the title of his landlord, and that he who takes under a tenant merely succeeds to the tenancy relation. That is familiar as a general common-law principle and is applicable so far as not abrogated by statute. It was enforced, at common law, as regards title by adverse possession. It has been incorporated into the statutes at sec. 4216, but not so as to go beyond the letter of the written law and defeat other plain statutes. No one will claim that, in its letter, the statute goes further than to affect tenants at first hands, so to speak, and those taking under them as tenants. The words “whenever the relation of landlord and tenant shall have existed between any persons the possession of the tenant shall be deemed the possession of the landlord,” etc., if applied to any other than a tenant in fact, extended by mere construction to include a possessor under the tenant not as such, but as owner, the grantee having no knowledge of the tenancy, ingrafting the common-law rule upon the statute, when by proper rules for construction it was abrogated by not being incorporated in the statute, and the same method of dealing with statutes be persisted in as to our other plain written laws affecting realty, — the result would be to defeat the very purpose of the statute makers, as will be seen.-

Sec. 4211 declares, as plainly as by words it could well be done, that if one takes possession of realty, claiming the same under a written instrument, as being a conveyance thereof to him, and exclusive of any other right, he becomes an adverse possessor. It admits of no exception in its letter. This court has said, it admits of no exception by construction; that it was phrased as we find it, in order that it might be understood easily, of all men, as eliminating the ancient doctrine that the person taking possession must do so in good faith.

We said that the question of good faith is not involved under our system, as it was at common law, simply because it is not found in the words of the statute. Lampman v. Van Alstyne, 94 Wis. 417, 427, 69 N. W. 171. An. examination of that case shows that in the early decisions of this court it was not appreciated that the plain wording of the statute, leaving out some of the common-law characteristics of adverse possession, was for the very purpose of abrogating them.

Speaking of the question raised in that case on the subject the court said:

“There is no middle ground that can be resorted to on this subject. Good faith is an essential element of adverse possession under the statutes of limitation, or it is not. The controversy should be tested and determined by the language of the statutes. We do not find it there in any literal expression, — anything to warrant a departure from the plain import of the words used. . . . The statutes of limitation are statutes of repose, and their purpose should not be impaired by injecting into them by judicial construction elements that are not there.”

In that plain language, it would seem, the court declared that our statutes of limitation, appertaining to real estate, are to he administered according to their letter, all common-law features of adverse possession not found therein expressed in such letter, to be regarded as abrogated. That doctrine is now more than twelve years old. It has been iterated and reiterated so many times and so many cases have been ruled by it, that it has become a rule of property, upon which all 'should feel that they may safely depend.

What feature was there that inhered in the doctrine of adverse possession, at the common law, more significant than the one that the entry was required to be characterized by good faith? It was much more significant, we should say, than the one upon which counsel for appellant rely. How •can we say one is not retained, because not found in the letter, •and say, in the same hreath, that the other, not so found, is retained ? How can we solemnly declare, and adhere to the declaration for a long series of years, that all common-law features of adverse possession not found plainly expressed in the statutes, are to be regarded as having been considerately excluded, because not included, and in the next breath say that some one of them was included, and endeavor to make it logical by referring to decisions elsewhere % Counsel for appellant has failed to satisfy us.

The rule adopted here, as stated, has been affirmed in cases too numerous to mention. They have been so significant as to be very familiar. The following are but a very small fraction of them: McCann v. Welch, 106 Wis. 142, 81 N. W. 996; Ill. S. Co. v. Budzisz, 106 Wis. 499, 507-520, 81 N. W. 1027, 82 N. W. 534; Frye v. Highland, 109 Wis. 292, 85 N. W. 351; Ill. S. Co. v. Bilot, 109 Wis. 418, 428-446, 84 N. W. 855, 85 N. W. 402; Pitman v. Hill, 117 Wis. 318, 322, 94 N. W. 40; Ill. S. Co. v. Budzisz, 119 Wis. 580, 97 N. W. 166; Clithero v. Fenner, 122 Wis. 356, 361, 99 N. W. 1027; Reitler v. Lindstrom, 126 Wis. 562, 565, 106 N. W. 388; State v. Lloyd, 133 Wis. 468, 473, 113 N. W. 964; Batz v. Woerpel, 113 Wis. 442, 89 N. W. 516.

Counsel point to decisions elsewhere, using language to the effect that one claiming under another who is but a mere tenant, takes no greater right than the permissive privilege of his grantor, no matter whether he takes knowing the facts or not knowing of them, — not appreciating that such doctrine is based on the supposition that good faith is essential to adverse holding and that bad faith of the grantor necessarily attaches and characterizes the possession of the grantee however remote, — which element of good faith is not required by our statute either in its letter or its spirit.

Many courts have fallen into confusion, as shown in Lampman v. Van Alstyne, 94 Wis. 417, 69 N. W. 171, by tying to decisions based on common-law principles, even where elements, other than those called for by the statutory system, were intended to be excluded, and other decisions in states where such elements, particularly that of good faith, are by plain language retained. When we appreciate the clear purpose of our early workers in the field of constructive legislation, and give effect to it, not bending words out of tbeir plain signification to avoid supposed hardship, possible under the new system, the proper course to pursue seems plain.

We start with sec. 4211, laying down that taking possession under a purported conveyance in writing; anything of the dignity of color of title, claiming as an owner might claim, initiates adverse possession; the raising of the flag of the invader, if the instrument is anything constituting, by common understanding, as laid down in the books, color of title; anything that is a real semblance of paper conveyance, however defective the title in fact, may be. McCann v. Welch, supra; Field v. Columbet, 9 Fed. Cas. 12; Bartlett v. Ambrose, 78 Fed. 839, 843; In re Ah Lee, 5 Fed. 899, 913; Latta v. Clifford, 47 Fed. 614; Aldrich v. Griffith, 66 Vt. 390, 29 Atl. 376.

It was said in McCann v. Welch, supra, by Justice Dodge, speaking for the court:

“Wherever the Wisconsin doctrine is maintained, no paper writing, purporting upon its face to be executed and to convey the land, has been held insufficient to support a claim of title such as may ripen into complete ownership by possession for the statutory period. A deed void upon its face will suffice (McMillan v. Wehle, 55 Wis. 685, 13 N. W. 694; Whittlesey v. Hoppenyan, 72 Wis. 140, 39 N. W. 355) ; a. deed executed by a married woman who has no power to convey (Sanborn v. French, 22 N. H. 246; Perry v. Perry, 99 N. C. 270, 6 S. E. 86); a deed ostensibly by an agent, possessing no authority (Millen v. Stines, 81 Ga. 655, 8 S. E. 315); or signed by one non compos mentis (Ellington v, Ellington, 103 N. C. 54, 9 S. E. 208); or by one having neither title nor possession (Webber v. Clarice, 74 Cal. 11, 15 Pac. 431; Love’s Lessee v. Shields, 3 Yerg. 405); a deed secured by fraud of the grantee (Oliver v. Pullman, 24 Fed. 127). . . . The underlying idea of this statute is not reward to the diligent trespasser, but rather of penalty upon the negligent and dormant owner, who allows another for many years to exercise acts of possession over bis property. The time necessary to render such occupancy effective under a deed is shortened, not in recognition of a good-faith claim by the occupant, but in recognition of the notice to the owner of the adversary character of that occupancy. .... The purpose of' the statute is not to benefit him who fraudulently obtains such a conveyance, but to deny the use of the courts to him who-negligently sleeps on his rights. The requirement of good faith in few cases supporting it is in disregard or forgetfulness of the real purpose of statutes of adverse possession.”' 106 Wis. at pp. 147, 148 (81 N. W. 997, 998).

This entirely eliminates from our consideration the idea that adverse possession cannot be initiated without some claim of actual title grounded on facts which, whether known or not, would give rise reasonably thereto.

Having fixed the point of commencement, as aforesaid, in the light of the written law; that it is determinable solely thereby, and that the character of the instrument is the deciding factor (Watts v. Owens, 62 Wis. 512, 22 N. W. 720), we pass to the next point, fully and plainly covered as before by see. 4215.

An adverse possession, commencing as indicated, and continuing without interruption for the full period of ten years,, bars “an action for the recovery of such real estate so held adversely or of the possession thereof.” Or, in other words,, creates title in fact.

That is rounded out by the plain statute, sec. 4210, changing, radically, the common-law rule that, possession by one,, not having title in fact, is presumed, unless shown, clearly and satisfactorily, to the contrary by evidence of the nature-of the entry as well as of the continuation of the possession, to be in subordination to the legal title, — so that, in case of possession being in one, as it might be in the true owner, for the full statutory period, the presumption arises, that it commenced with all the statutory essentials of adverse entry and likewise continued, efficiently extinguishing the original title; such presumption being, of course, one of fact and, as such, rebuttable, yet, of as much dignity in favor of the new apparent owner as the presumption displaced during its life was in favor of the former owner’s title, in that it requires evidence to extinguish it of the same probative force as would be required to overturn the former.

That makes a complete code of written law, easily undcr•stood, and abrogates all rules inconsistent with it, and plainly the rule, so far as it ever existed in fact, that a conveyance by one having a permissive right, such as a tenant, does not ■furnish a legitimate basis for the incidents of adverse possession.

The significance of this statutory displacement of the common-law presumption, if not fully appreciated in the early •days of our system of adverse possession, wholly governed by written law, has been fully- vindicated in recent years, as will be seen by the decisions we have referred to, particularly McCann v. Welch, 106 Wis. 142, 81 N. W. 996; Pitman v. Hill, 117 Wis. 318, 323, 94 N. W. 40; Wilkins v. Nicolai, 99 Wis. 178, 74 N. W. 103; Wollman v. Ruehle, 100 Wis. 31, 35, 75 N. W. 425; Ill. S. Co. v. Bilot, 109 Wis. 418, 440, 84 N. W. 855, 85 N. W. 402.

So we find that the doctrine of title by right of conquest alone, provided for by statute at all points, harsh though it may seem, in an instance now and then, is, in general, grounded on sound public policy and is well established as a rule of property by our written and our unwritten law.

If one raises the flag of the invader, grounded on mere color of title, regardless of right or claim of right in fact, and keeps that flag flying without interruption, in view and defiance of all men, for the full period required, he thereby acquires all the right of a conqueror, who often obtains his right, so called, by force.

It is needless to refer at length to decisions elsewhere whether in or out of harmony with the foregoing, though the incidental reference here made to the cause of want of harmony, so far as the same exists, anight be easily demonstrated to a mathematical certainty. In jurisdictions where contrary holdings are claimed to exist, it may readily be seen how difficult courts have found it to maintain their position.

In Bradt v. Church, 110 N. Y. 537, 18 N. E. 357, the New York court charged the alleged adverse possessor with the characteristics of his grantor’s right, in that it was that of a tenant, because he entered under a quitclaim deed from saach tenant, though it was confessed he was ignoraait, in fact, of such grantor’s relation to the real owner. The turning point seems to have been the character of the conveyance as-indicated. To that there is an able dissenting opinion by Mr. Justice Earl, in the course of which it is said:

“Can it be the law that when a lease has once been executed all persons thereafter found in the adverse possessioaa of the-land must be presumed to be in under the lease ? There is-absolutely no case holding or hinting at such a doctrine. It. is not found in the cases of Jackson v. Davis, 5 Cow. 123, and Jackson v. Harsen, 7 Cow. 323. In each of those cases-the party in possession claimed -under or from the lessee.”

There was no question in that case but that the persons claiming by the right of adverse possession based such right on a deed from a tenant of the true owner. That was supposed by the court to make him, necessarily, a claimant under the lessor, notwithstanding it appeared that he took, not as such, but as grantee, on the face of things, of the title. Justice Earl argued that actual taking as tenant was essential to connect the alleged adverse possessor with the tenant. Eeferring to the cited cases he said:

“In each of those cases the party in possession claimed un- • der or from the lessee, and it was held that he took the position of the lessee, and could not, therefore, dispute the title of' the landlord or set up adverse possession against him. But they are far from holding that the relation of landlord and tenant may be presumed without any proof, and thus what would otherwise be an adverse possession be defeated.” -

In Townsend v. Boyd, 211 Pa. St. 386, 66 Atl. 1099, to wñich we are referred, the doctrine here contended for by appellant was most distinctly repudiated. The court said:

“Where one enters without knowledge of the tenancy, and irrespective of it, in the assertion of a title on its face adverse •to the lessor, though derived, as here, from the tenant, his possession will be hostile, if unequivocal acts and declarations manifest an intention to hold in despite of all others. . . . Of the facts that have been recognized as indicative of hostile intent, none are perhaps more decisive than the exhibition •of a paper title, independent of that residing in the original •owner, by color of which the party justifies his entry.”

That language was based on the situation that the adverse possessor took possession under a deed and circumstances •showing assertion of title of record.

That is to say the doctrine upon which counsel relies ■does not apply without specific proof that the hostile claimant took possession by virtue of the tenancy instead of in ignorance and repudiation of it.

It seems useless to pursue the matter further.

The opinion of the court is that the case is ruled by the letter of the statute in favor of the affirmative of the proposition presented, which we have fully discussed, and which, as we have seen, is the only one advanced by appellant to defeat the judgment deemed to be sufficient as to doubt and difficulty to warrant special treatment thereof.

By the Court. — Judgment affirmed.

The following opinion was filed February 23, 1909: