O'Dell v. Browning

Evans J.

— I. The land in controversy is a 10-acre tract. The plaintiffs are the heirs 'at law of Sarah O’Dell, who died intestate, February 24, 1913, and who had been the occupant of such land for many years prior to her death. She purchased the land in July, 1897, from J. P. Martin, and obtained from him a conveyance thereof, with full covenants of warranty. She entered into immediate possession under her deed, and enclosed the land, and made her home thereon continuously up to the time of her death. At or about the same time, she purchased other adjoining tracts, and occupied the same as one farm, consisting of 74 acres, of which the 10-acre tract in controversy was a part. A few *225 days prior to Ms eonveyance to Sarah O’Dell, Martin, her grantor, had purchased the same from William T. Branson', who conveyed to Martin by deed purporting to transfer the entire title, and with full covenants of warranty. The cloud upon the plaintiffs’ title arose from the fact that Branson’s record title covered only an undivided one half of the tract. The title to the other undivided one half appeared in Joicy Branson, the then wife of William T. Branson, and now the wife of one Browning. She is the defendant Joicy Browning. She now claims as a tenant in common, and now contends that, because of her tenancy in common with her former husband, his grantees took only as cotenants of her, and that their possession was, therefore, not adverse to her. She contends also, in effect, that, for want of notice to her, there never was any ouster, and that, therefore, the statute of limitations was never set in motion. As against her contention, the plaintiffs claim, in effect, that the warranty deed from Martin to Sarah O’Dell purported to convey the full title, and was, by its terms, hostile to any alleged outstanding interest, and was, therefore, necessarily hostile to any claim of cotenancy; and that Sarah O’Dell took possession under her deed under color of title and claim of right in good faith; and that her possession was open, notorious, adverse, and exclusive. It is further contended for the plaintiffs that, notwithstanding the state of the record, the defendant Joicy Browning, or Branson, never in fact had any title or interest in such land, and that the appearance of her name in the chain of title was the result of a mere mistake.

1. Tenancy in common : creation and existence: name inserted as grantee by mistake : effect. The material facts in the case are practically undisputed. William T. Branson purchased the land from Coffey in 1893. Coffey prepared and executed the deed in the absence of Branson, and named both Branson and his wife as grantees therein. *226 The deed was sen t to Branson, and by him placed of record. Neither he nor his then wife ever discovered until the year 1915 that her name was included as a grantee. The insertion thereof in the deed was the mistake of Coffey. She had, in fact, no other interest in the purchase or in the real estate than her inchoate right of dower as the wife of the grantee. In 1898, she left her husband and never returned to him. In January, 1896, he obtained a decree of divorce. Shortly thereafter, she intermarried with Browning. As against the correction of the deed from Coffey on the ground of mistake, she pleads the statute of limitations. But she has made it appear in the record that she has been a nonresident of the state of Iowa continuously since 1893.

2. Limitation of Actions: nonresidence: effect The statute of limitations, therefore, is not available to hér. The fact of the mistake in the Doffey deed is clearly established, and without conflict in the evidence. This fact alone is sufficient to justify the decree of the trial court.

3. Adverse possession : postile character of posession: posession under unqualified deed. *227 4. Tenancy in common : creation and existence: deed by one tenant of entire tract: ouster : limitation of actions.

*226 II. We think it clear, also, that the plaintiffs have established ouster and adverse possession in good faith by Sarah O’Dell from July, 1897, until the date of her death, and by the plaintiffs, as her heirs, since the date of such • death. The deed from Martin to Sarah O’Dell was placed of record about the time of the execution thereof; likewise, the deed from Coffey to Martin. Sarah O’Dell was not, herself, conscious of any infirmity in her title. The fact has its bearing upon the question of the good faith of her exclusive possession and claim of right. She was doubtless charged with constructive notice of the state of her title as it appeared upon the record, but this,- of itself, would not prevent the running of the statute of limitations, nor would it destroy the adverse character of her possession. It is well settled that *227 a warranty deed by a cotenant, purporting to convey the full title, with full covenants of warranty to a stranger to the title, is an act of ouster, and that good-faith possession thereunder by the grantee, under such deed and under claim of exclusive right, is adverse. Such adverse possession will ripen into a good title within the statutory period. Kinney v. Slattery, 51 Iowa 353 , Laraway v. Larue, 63 Iowa 407 , Crawford v. Meis, 123 Iowa 610 , McBride v. Caldwell, 142 Iowa 228 , Murray v. Quigley, 119 Iowa 6 . See also Kittredge v. Locks and Canals, 17 Pick. (Mass.) 246; Ricker v. Butler, 45 Minn. 545 ( 48 N. W. 407 ) ; King v. Carmichael, 136 Ind. 20 ( 35 N. E. 509 ); Jackson v. Smith, 13 Johns. (N. Y.) 406.

We see no room for doubt as to the correctness of the decree entered below. It is, accordingly, — Affirmed.

Gaynor, C. J., Ladd and Salinger, JJ., concur.