McClaskey v. Barr

42 F. 609, 6 Ohio F. Dec. 572, 1890 U.S. App. LEXIS 2211

• Court: U.S. Circuit Court for the District of Southern Ohio
• Decided: April 26, 1890
• Status: Published

Opinion

Sage, J.,

(after stating the facts as above.) The contention of counsel for the defendants in support of their motion, that a suit in equity for partition is not an appropriate proceeding to try title to property, and, when the complainant’s title is legal and is disputed, the bill will be dismissed, or proceedings stayed until he establish his title at law, was recognized by tins court in McClaskey v. Barr, 40 Fed. Rep. 563. That adverse possession ripens into title, and that in all cases the title vests as soon as the remedy against the adverse holder is barred by the statute of limitations, is so well established by decisions of the supreme court of Ohio, (Kyser v. Cannon, 29 Ohio St. 359; Rhodes v. Gunn, 35 Ohio St. 387,) and by the supreme court of the United States, (Leffingwell v. Warren, 2 Black, 605; Croxall v. Shererd, 5 Wall. 289; Bicknell v. Comstock, 113 U. S. 152, 5 Sup. Ct. Rep. 399; Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. Rep. 209,) that it is not open to be disputed. The question to be decided is whether the answers present a good pica of the statute of limitations, or that the title is legal, and is disputed.

The will of William Barr, Sr., winch it is admitted was duly probated in the probate records of Hamilton county, devised the real estate described in the bill to his executors for the use of his son, John M. Barr, during his natural life, and after his death in trust for his wife, Maria Barr, afterwards Maria Bigelow, daring her natural life, with remainder to the children of John M. Barr, and their heirs, forever. The conveyance by Maria Bigelow to Ephriam Morgan and Lot Pugh -was the conveyance, not of a legal, but of an equitable, estate, of which the grantees by reason of the probate of the will were bound to take notice. McArthur v. Scott, 113 U. S. 405, 5 Sup. Ct. Rep. 652. Thedefendants admit that upon the death of Mary Jane Barr said real estate descended, subject to the life-estate of MariaBigelow,tothebrothers and sisters of William Barr, Sr., or their heirs, as heirs at law of the said Mary Jane Barr, but they deny that Mary Grafton was one of the sisters of said William Barr, Sr. It is insisted that, as the deeds to Morgan and Pugh, and the subsequent deeds by them to grantees under whom the defendants claim, purported to convey the fee-simple, that they gave at least color of tide upon which an adverse possession could be founded. That a deed purporting to convey a fee, made by one not having title, is sufficient to give color of title, is true; but that conveyances made during the life of Maria Bigelow', the life-tenant, could be the foundation of a claim to adverse possession during her life-tenancy, is not true. By her deed she transferred all her interest in the property and her exclusive right to possession. So long as she lived there could be no possession adverse to the heirs of Mary Jane Barr, for the reason that their right of possession, as tenants in common, did not accrue .until the death of Mary Bigelow. For that reason the deeds purporting to convey the fee, made during her life-time, could not operate as an ouster of those entitled in remainder. There was no co-tenancy then in existence. The estate in remainder was vested, it is true, but the right of possession, and therefore the co-tenancy, was postponed until her death. But it is claimed that the character of the improvements made under the deeds above referred to during her life-time may be referred to as indicating the intention of the parties in possession to exercise the rights of complete ownership of property, and as reflecting upon the character of their possession from and after her death. This proposition, properly guarded, as will be hereinafter indicated, is recognized as sound. The right of complainants to possession and partition sprang into existence upon the termination of the life-estate by the death of Maria Bigelow'.

It is averred by the complainants, and admitted by the defendants, that, in 1838 and 1839, Morgan procured some 19 deeds from children of John Barr, Samuel Barr, and Jane McWhirter, conveying their interest in the entire tract of land described in bill. Upon the death of Maria Bigelow, which occurred, according to the averments of the bill, in August, 1860, Morgan’s grantees, by virtue of these convej'ances and subsequent conveyances to them, became co-tenants with complainants, and with the heirs of Mary Jane Barr, in the property. Now, what are the averments upon wffiich the claim of adverse possession, subsequent to that time, is based? There are averments, already noticed, of continuous and exclusive possession, of receiving and retaining all the rents and profits, of paying taxes, and of making permanent and costly improvements, all claimed as indicating a holding adversely, and tlie assertion of absoluto ownership. But there is nowhere any averment of notice to the co-tenants not in possession, excepting as it is to be inferred from the acts above stated. On the contrary, the answer filed January 18, 1890, contains the averments that the open, notorious, continuous, and exclusive possession ol' said promises by the defendants and all their grantors was “in good faith, and without notice of the claims of these complainants or their alleged ancestors in title, or .either of them.”

Zeller's Lessee v. Eckert, 4 How. 289, is in point. There was in that case a devise of land to the son of the testator, with a provision that the widow should continue in possession and occupation of the promises until the son arrived at the age of 15 years. The supreme court hold that her possession was not adverse to the; heirs of the child during that period. So hero the possession of Morgan and of 1ns grantees, during the life-time of Maria Bigelow, was not adverse to the heirs of Mary Jane Barr. The supreme court further held that, as the possession “was originally taken and held in subserviency to the title of the real owner, a clear, positive, and continued disclaimer and disavowal of the tille, and assertion of an adverse right, and to be brought home to the party, are indispensable, before any foundation can be laid for the operation of the statute.” The court further said that—

“Otherwise the grossest injustice might be practiced; for without sueli notice he might well rely upon the fiduciary relations under which the possession was originally taken and held, and upon the subordinate character of the possession as the legal result of those relations.”

And still further:

“The statute, therefore, does not begin to operate until the possession, before consistent with the title of the real owner, becomes tortious and wrongful by the disloyal acts of the tenant, which must be open, continued, and notorious, so as to preclude all doubt as to the character of the holding, and the want of knowledge on the part of- the owner. ”

It is urged that the purchase and procurement of the conveyances by Morgan above referred to, and the purchases by Lincoln and Smith as trustees on behalf of the defendants, subsequent to the death of Maria Bigelow, onght not to be treated as recognitions of the complainants’ title, but rather as purchases of the outstanding interests, for the protection of the defendants’ title, made to avoid litigation, and by way of compromise and buying peace. All the conveyances since the case of Poor v. Considine are averred in the answer to have been so made, and it is urged that they did not, therefore, interrupt the continuity of the adverse possession claimed on behalf of the defendants. All this may bo granted for the sake of the argument, but without helping the defendants. The question is not whether those acts interrupted the continuity of possession, but how do they bear upon the question of notice to the co-tenants who were out of possession? Counsel say that the defendants did not claim title under any of these deeds, and that their possession and title are referred entirely to the deeds from Morgan to his grantees, and the derivations of title subsequently by defendants under those deeds. It is easy to see that if Morgan had made no purchases from the heirs of Mary Jane Barr, and taken no deeds from them, the position of the defendants would be much stronger than it is. In that case, having no relation of co-tenancy with the complainants, their holding from the death of Maria Bigelow might well have been regarded as adverse. But one result of Morgan’s taking those deeds was to put him in the relation of co-tenant with the complainants instantly upon the death of Maria Bige-low, and the question now is, has the subsequent holding by the defendants been accompanied by acts which amount to notice to the co-tenants of an adverse holding? How are we to reconcile with any such theory the agreed and recorded statement of facts which was embodied in the bill of exceptions in the Poor and Considine Case, or the written agreement authorizing and empowering T. D. Lincoln and Fayette Smith, as trustees, to buy in, for the use of the defendants or their grantors, the outstanding title of the several heirs of William Barr, John T. Barr, and Margaret Barr Keys, all grandchildren of'Samuel Barr, who is alleged to have been a brother of William Barr, Sr.? Can any of these acts or transactions be construed as notice to the co-tenants of an adverse holding? Every one of them indicates, as far as the question of notice is concerned, as does the proceeding of record in which the deposition of Maria Bigelow was taken and filed, a holding in subserviency, rather than in opposition to the title and interests of the co-tenants; and we are of opinion that it is impossible to reconcile those acts, taken in connection with the other admitted facts, with the claim of an adverse holding. We are considering .them solely and exclusively with reference to their bearing upon the question of notice to the co-tenants. It is not pretended that an actual notice was given. On the other hand, as has already been shown, the ansAver denies any knoAvledge even of the existence of the complainants. We are not controverting the proposition that if no such notice had been given, the defendants might, without prejudice, have taken deeds for outstanding interests of co-tenants, by AATay of compromise and to avoid litigation; but it has been held that where the possession wras adverse, so as to amount to a disseisin, the disseisin would be purged by the purchase of shares of several of the heirs soon after, and the subsequent possession must be considered as the possession also of the other heirs, from whom title had not been obtained. Parker v. Proprietors, 3 Metc. 99. Now, regarding the fact that costly and permanent improvements Avere made by Archbishop Purcell in the time of the life-estate of Maria Bigelow,.and the fact, also, that improvements of like character were made by him after her death, as indicating a claim to the entire estate, and intention to hold adversely, Ave must, in considering the question whether notice to the complainants can be reasonably inferred, take into account that the recorded deeds to the defendants by co-tenants of complainants amounted, in the absence of actual notice to the contrary, to notice that the defendants recognized the co-tenancy. These suggestions apply, with perhaps even greater force, to the subsequent deeds from co-tenants procured through Lincoln and Smith, trustees, and containing recitals recognizing in express terms the co-tenancy. The admitted facts, as they appear from the pleadings, cannot be reconciled with the proposition that there has been an adverse possession, so open, continued, and notorious “as to preclude all doubt of the character of the holding or the want of knowledge on that part of the owner,” which is what the supreme court in Zeller’s Lessee v. Eckert declared to be necessary.

But it is urged that exclusive possession by a tenant in common for a great length of time, without interruption or claim by the other tenants, is evidence from which a jury .would be authorized to infer or presume an actual ouster, and that on similar evidence a grant may be presumed. This is undoubtedly true as a general proposition, but it falls also under the head of laches, and is cognizable in equity. In Hall v. Law, 102 U. S. 461, long-continued possession of this kind was held to be sufficient to authorize a decree dismissing the bill, on the ground that the claim set up by the complainants was stale. There is therefore no reason why upon this proposition the case should be sent to a jury.

The answer denies that the complainants are descendants of Mary Grafton, and denies their heirship, and it is contended that this is a denial of title, and hence that the defendants’ motion must be granted. It is urged' that the asserted claim of the complainants depends wholly upon their heirship, which lies at the threshold of their case, and that, upon it depends their whole title. The case of Wilkin v. Wilkin, 1 Johns. Ch. 111, is cited; but in that case whether the complainants were heirs of the person last seised, was only one of the questions in dispute. In this case it is admitted by the defendants that the land described in the bill descended in accordance with the provisions of the will of William Barr, Sr., to the heirs at law of Mary Jane Barr. The denial of the heir-ship of the complainants, therefore, raises a question of identity, rather than of title, and does not, we think, make it necessary or proper to submit the question to a jury.

The last objection which we think it necessary to consider is that the complainants are not in possession, and that it matters not for how short a time the adverse possession has been maintained, for 21 days is as good for this proposition as 21 years; and, if this adverse possession is established, the tenants do not hold together, and the plaintiff must try his title in ejectment before he will be in a position to sue in partition. But we have already seen that the admissions by the defendant in the pleadings are sufficient in themselves to defeat the claim that there has been an adverse possession. Moreover, this suit was brought in a state court, and removed to this court, and, as was held in Tabler v. Wiseman, 2 Ohio St. 207, a right of entry will entitle a party to the proceedings in partition, in Ohio, without the actual seisin required in some other states. The authorities are not uniform on this point. In some states it has been held that the complainant must allege that he is seised, which imports a present possession as tenant in common or coparcener, and that a mere right of entry, if shown, will not be sufficient. It has been so held in New York and in Vermont. In other states, as in Maine, Massachusetts, New Hampshire, Indiana, Minnesota, and Illinois, it has been held, on the other hand, that a disseised co-tenant may have partition. This being the rule in Ohio, we think it should be the rule in this case. Recurring to the holding in Lucas v. King, 10 N. J. Eq. 280, cited in the ruling made by this court upon the exceptions to the answer, (40 Fed. Rep. 564,) that “if, when the titles are spread before the court upon the pleadings-, the court can see that there is no valid legal objection to complainant’s title, there is no reason why the court should not proceed to order the partition,” (see, also, Overton’s Heirs v. Woolfolk, 6 Dana, 374,) our conclusion is that the defendants’ motion must be overruled.