Henderson v. Mann

Evidence; Presumptions; Adverse Possession; Ejectment. 1. Where tlie existence of a condition is shown, such as the residence of a party at a given place, it will he presumed to continue until the reverse is shown. > 2. Means of knowledge is the same thing in effect as knowledge itself. 3. While an ouster or disseisin of an owner of an undivided interest in land is not to be presumed from Uie mere fact of sole possession by a co-owner, it may be proved by such possession accompanied by notorious claim of an exclusive right. 4. Where one of several cotenants of real estate is in possession and deals with the property as absolute owner, such as knowingly encumbering it by mortgage or deed of trust, and by his acts conveying to the public the impression that he is holding adversely to his co-owners, he may acquire a good title by adverse possession. 5. While payment of taxes and appropriation of rents by one of several owners of land will not of themselves necessarily amount to an adverse claim of exclusive ownership as against Ilia co-owners, they may amount to sueli a claim, when accompanied by other acts amounting toa positivo denial of right on the part of such co-owners. C. Where in ejectment to recover an undivided interest in land, the defense was that the plaintiff', one of several heirs of a former owner, her father, had been ousted by his widow and other heirs under whom the defendant claimed, and ic appeared that in 1876. after the death of her father and when the plaintiff w'as about sixteen years of age. she left the premises at the instance of the widow and thereafter lived elsewhere in the District, and for thirty-eight years made no claim for possession or rent, or the right to live on the premises and paid no part of the taxes, while during that period the. widow and other heirs remained in possession, claimed ownership, paid taxes, satisfied existing deed of trust encumbrances. placed other deed of trust encumbrances on the property and paid them, it was held that the trial court properly directed a verdict for the defendant.

Note. — On presumption of ouster of one tenant in common from long-continued, undisturbed possession of another, see note in 10 L.R.A.(N.S.) 185.

Hearing on an appeal from a judgment of tlie Supreme Court of the District of Columbia, on a directed verdict by tlie court, in an action of ejectment. The'Court in the opinion stated tlie facts as follows: The appellant, Mary Johnson Henderson, plaintiff below, brought her action to recover possession of an undivided one-third interest in certain land located in this city. At the close of tlie evidence, the defendant, Isaac T. Mann, moved for an instructed verdict on the ground that the plaintiff’s own testimony showed that she had befen ousted by her cotenants in 1876, and that they and their grantees, of whom the defendant is one, had been in continuous adverse possession down to the time of the suit. It ivas agreed upon the record that there was no question of fact for submission to the jury; and thereupon the court, resolving the matter as a question of law, instructed tlie jury to return a verdict for the defendant. It appears from the testimony of the appellant, a negro woman born of a slave marriage, that she lived on the premises in dispute witli one John Johnson and Barbara Johnson, whom she claimed to be her father and stepmother, respectively, and their children, until 1876, at which time Johnson died, she being then at least sixteen years of age. After his death Barbara told appellant that she “could not stay there any longer,” and she went “back to mother” in South Washington, where, for aught that appears, she continued to reside ever since. Subsequently she did not live on the property, but visited it “every other Shnday” until Barbara married again, which “was not very long” after the death of Johnson. Appellant never received any rent or other benefit from it, and made no demand to be compensated for its use or to be accorded the right to live on it, and made no claim of any interest in it during the thirty-eight years which elapsed between the date of her exclusion, in 1876, and the institution of the suit. Neither did she pay any taxes. On the part of the defendant there was evidence tending to show that the appellant never resided upon the premises, was never recognized by Johnson as his child, and never claimed during his lifetime to be his child. The record shows without dispute that Johnson purchased the ground in 1872 for $400, paid $50, upon the purchase price, and gave promissory notes for the residue secured by deeds of trust covering the land; that at the time of his death less than one half of the debt evidenced by these notes had been liquidated, and besides he was indebted for materials used in erecting a house upon the lot. From the time of his death until 1905 Barbara and her two children were in sole and exclusive possession of the property claiming it as their own, were understood in the neighborhood to be the owners of it, and in course of time paid oft' the indebtedness against it, taking a release of the trust deed to themselves. On six different occasions they, claiming to be the sole Owners of the property, executed trust deeds conveying the entire title of the property to secure the payment of money borrowed. There was a partition suit, date not given, by one of the cotenants, to which appellant was not made a party, and which eventuated in a sale of the property. From the purchaser at this sale appellee deraigns his title .by mesne conveyances. This testimony discloses a serious dispute as to whether or not the appellant was the child of John Johnson. If she was not, then of course she was not his heir and had no right to the property in question, but by consent of the parties, as we have heretofore observed, that question was withdrawn from the jury and the case submitted to the court upon the sole consideration as to whether appellant, assuming her to be the child of John Johnson, was barred from asserting her right to the property by the adverse possession of her cotenants. Other matters are assig'ned as error, but this is the one question argued and the only one which we will notice, in view of the stipulation just mentioned. Abrams v. Hhoner, 44 Hun, 507; Allen v. Morris, 148 S. W. 905; Jackson, ex dem. Bradslreet v. Huntington. 5 Pet. 402; Brown v. McKay, 125 Cal. 291; Olymer v. Hawkins, 3 IIow. 674; He Long v. Mnlcher, 47 Iowa, 445; Dobbins v. Dobbins, 141 A. C. 2Í4; Elder v. McClaskey, 70 Fed. 529, 163 U. S. 685; English v. Howell, 119 Ind. 93; Feliz v. Feliz, 102 Cal. 1; Voy v. Wellborn, 112 Ala. 1(50; Golden v. Tyer, 180 Mo. 196; Gregory v. Gregory, 102 Cal. 50; Llall v. Law, 102 TI. S. 461; Hart vlEklreci, 264 'Mo. 148; Hogan v. Kurtz, 94 U. S. 773; Hvbbwrd v. Wood, 1 Sneed, 279; Jackson v. Whilbeck, 6 Cow. (¡32; Jennings v. Webb, 8 App. 1). O. 43; Johns v. Johns, 93 Ala. 289; Kimbrell v. Rogers, 90 Ala. 839; Lindsey v. Smith, — Ky. —, 114 S. W. 779; Merry man v. Cumberland Bayer Go. 98 M'd. 223; Morris v. Vanderin, 1 Dali. 64; Morris v. Wheat, 11 App. I). C. 201; Few ell v. Woodruff, 30 Conn. 492; Owen v. Morten, 24 Cal. 373; Packard v. Moss, 68 Cal. 123; Prescott v. Fevers, 4 Mason, 326; Bicard v. Williams, 7 Wheat. 59; Rich v. Victoria Copper Min. Co. 147 Fed. 380; Hick, v. Bray, 37 Fed. 273; Higgs v. Dooley, 7 P. Mom 23(5; Roberts v. Moore, 8 AVall. Jr. 202; Rudolph v. Peters,- 35 App. D. C. 4-38; Van Bibber v. Frazier, 17 lid. 436; Van Dyck v. Van Beuren, 1 Caines, S4; II "ar field v. Lind ell, 30 Mo. 272; Woolf rey v. Morse, 19 JI<nv. Pr. 273; Zeller v. Eckert, 4 How. 289.