Gardiner v. Hinton

Teuly, J.,

delivered the opinion of the court.

The question presented by this record is whether appellant can successfully interpose the plea of adverse possession. Code 1892, § 2134, provides, “Ten years’ actual adverse possession by any person claiming to be the owner for that time, of any land, uninterruptedly continued for ten years by occupancy,' descent, conveyance, or otherwise, in whatever way such occupancy may have been commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title,” with certain exceptions saving the rights of minors and those suffering from unsound minds. The record proves in the instant case, beyond peradventure, the actual, open, and notorious possession by the appellants or their vendors for more than the statutory period before the institution of this suit, *612 on tbe 20th of February, 1903. That John Oreel entered into possession in 1885 under an unrecorded warranty deed conveying the entire tract in fee simple is not denied. That his vendee, the Kamper-Lewin Manufacturing Company, and its vendee, John Hamper, and his vendees, Eastman Gardiner and others, appellants, entered into possession and actual occupancy in 1891, is not denied. Since that date the proof establishes that the occupancy and possession of the property in controversy by the appellants has been open and notorious, marked by every possible assertion of sole and absolute title — the construction of valuable improvements, the regular payment of all taxes, the selling of lots located on the lands, and an absolute control and supervision, exercised in the same manner and to the same extent of an owner holding by an indefeasible title. That appellants or their immediate vendors recognized, or, in fact, knew or had any grounds to suspect, that any one other than themselves claimed any interest in or title to the lands at the date of their purchase and entry, is neither contended by counsel nor suggested by the record. This is a full compliance with all statutory requirements as to the nature, extent, and duration of the occupancy and possession necessary to vest by adverse possession full and complete ownership. Unless, therefore, ap-pellee can show that her case falls within some recognized legal exception which prevents the application of the statute, her claim, must fail.' The soundness of the general proposition that adverse possession, as defined by the statute, if uninterruptedly continued for the statutory period, vests full and complete title, is not questioned. But it is urged that the general rule has no application to the instant case, because it is said the possession of appellant was not adverse to appellee until the deed.from Isaiah Oreel to John Oreel, conveying the estate in severalty, was placed of record; that appellee, having no actual notice of any adverse claim by appellants or their vendors, only received constructive notice by and from the date of the filing of the deed for. reeord, and, as this only occurred *613 in 1895, less than ten years before the institution of the suit, the bar of the statute was not complete. This argument is founded upon the well-defined and firmly established principle that the possession of one co-tenant inures to the benefit of all. Nowhere, perhaps, is the rule expressed with more lucidity and legal precision than in Hignite v. Hignite, 65 Miss., 449 ( 4 South. Rep., 345 ; 7 Am. St. Rep., 673 ), where this court, through Cooper, C. J., says: “A tenant in common out of possession has a right to rely upon the possession of his co-tenant as one held according to the title, and for the benefit of all interested, until some action is taken by the other evidencing an intention to assert adverse and hostile claims. If one enters upon the land of a sole owner, and without his consent, he must know that such possession exists, and, within the time permitted by law, take steps to vindicate his right. But the possession of a co-tenant is a lawful possession, and of and by itself is not evidence of an ouster.” The appellee contends that the legal principle just quoted is applicable to, and should control the determination of, this case; that appellee, in default of actual and constructive notice of an assertion of hostile claim of exclusive ownership, had a perfect right to rely upon the possession of those holding under her co-tenant as being subordinate to, and for the benefit of, the joint title; and that, without such notice and in the absence of actual ouster, no character or duration of use and occupancy would ever ripen into a title adverse to her claim as co-tenant. The cases of Hignite v. Hignite, supra; Alsobrook v. Eggleston, 69 Miss., 836 ( 13 South. Rep., 850 ); and Bentley v. Callaghans Executor 79 Miss., 304 ( 30 South. Rep., 709 ), are cited and relied on as supporting the doctrine and showing its applicability to the instant case. To this argument it is replied by appellants: Conceding the accuracy of the general proposition that one co-tenant can never, unless in an exceptional case of actual ouster, acquire title to the joint property by adverse possession, that rule has no application to the instant case, for two reasons: *614 First — That appellants rely upon adverse possession — a possession adverse from its inception, an occupancy hostile from the moment of its commencement; that neither these appellants nor any of their vendors ever recognized any claim of appellee as co-tenant; that none of them ever occupied the relation of co-tenant toward appellee; and that the original entry into possession was not in subordination to the claim of appellee. Second — That the deed executed by Isaiah Creel, the tenant in common, to John Creel, of the estate in severalty, was in itself the assertion of an adverse title, and that this deed, even though unrecorded, when coupled with the actual occupancy of the lands, was a sufficient predicate on which to base the claim of adverse possession; and, the occupancy having continued for the statutory period, the title vested by operation of law, without regard to the “way such occupancy may have been commenced or continued.”

.We find ourselves unable to agree with the argument presented on behalf of appellee. The facts of this case do not bring it within the scope of the rule which prevents one co-tenant from acquiring a title in himself to the' common estate without either an actual ouster or actual or constructive notice of the assertion of the hostile claim. We maintain that doctrine in its fullest extent, and with unimpaired force, in cases when properly applicable. But in the instant case there is no effort on the part of any co-tenant, or any one who ever occupied that position toward appellee, to acquire a paramount title to the common estate. Here from the. moment of the entry the possession was antagonistic to the claim of appellee or any third person. The occupancy of John Creel in 1885 was! founded on an instrument which, by its very terms, constituted ■such an act of ouster as would have justified appellee in bringing ejectment for the property. And since that time every moment of occupancy has been a reiteration of this assertion of hostile claim of exclusive ownership. No case can be found in our reports advancing a contrary view. The cases cited .by *615 appellee axe easily and clearly distinguishable. The Hignite case is one where a co-tenant in possession sought to acquire a hostile title to the whole interest in the land, and, without giving notice of his intention, assert the same against his co-tenant. The Alsobroolc case is one where one in possession in recognition of the rights of his co-tenants, holding under a deed conveying only a half interest in the land, endeavored to set up this character of occupancy as an assertion of an adverse holding against his co-tenants. The Bentley case also presented the instance of one co-tenant seeking to found claim of title to the whole interest in the land upon an occupancy which was ^‘by law presumed to be permissive of his co-tenants.” An analysis of those cases shows that in each instance it was an effort on the part of one co-tenant to acquire for himself an absolute title to the common estate. This, under universally recognized principles, he was not permitted to do, and we have no purpose to vary or modify the views announced in any one of those opinions.

. The ease at bar presents no question of an attempt on the párt of any co-tenant, or any person who ever occupied the relation of co-tenant, to assert any paramount title in himself. Had John Creel entered into actual occupancy of the land in 1885 without any deed, and remained in open, exclusive, notorious possession, claiming adversely as owner, at the end of ten years such possession would have vested in him full and complete title at least to the land actually occupied. Welborn v. Anderson, 3 7 Miss., 155 . Had the deed from Isaiah to John Creel never been executed and the deed from John Creel to the Kam-per-Lewin Manufacturing Company passed no legal title, still it would have constituted color of title; and as Hamper and these appellants entered into possession in 1891 under such color of title, and remained in the actual adverse possession, under the circumstances set forth in this record, their title would have been fully vested by operation of law before the institution of this suit. Nash v. Fletcher, 44 Miss., 609; Hanna v. *616 Renfro, 32 Miss., 125 . This being true, we are unable to see how the fact that the deed from Isaiah to John was not placed of record until 1895, and that suit was instituted within, ten years after the date of the filing thereof, can possibly avail the appellee. That deed contained no recognition of appellee’s title, was in subordination of no assertion of intei*est by appellee, contained no provision which-would put'appellants on notice that it was a deed of one co-tenant conveying the entire estate in fee. It was itself the assertion of a hostile title, an act of disseizin, and a constructive ouster of the other co-tenant. And in this connection it is worthy of note that in the Alsobrook case, in deciding that the co-tenants'out of possession were entitled -to recover that portion of the land held by Wade under a deed in severalty from the other co-tenant, it is expressly stated that such sale was “less than ten years before this suit was commenced,” thus impliedly, at least, committing the court to the generally accepted doctrine that a holding of possession for the statutory period under a deed .in severalty from one co-tenant to a stranger to the title vests a full and complete title. Sedg. & Wait., Trial of Title to Land, sec. 281; Freeman, Cotenancy & Partition, sec. 224; Tyler, Ejectment & Adverse Enjoyment, p. 882; Larman v. Huey's Heirs, 13 B. Mon., 436 ; Roberts, Adm'r, v. Morgan, 30 Vt., 319 . Had the deed from Isaiah to John Creel never been placed of record, appellant’s open, exclusive, and continuous occupation of the land as owner would at the end. of ten years have ripened into a valid title. Stovall v. Judah, 74 Miss., 756 ( 21 South. Rep., 614 ).

It should be observed that more than ten years elapsed between the execution of the deed to- John Creel, 13th of February, 1885, and its filing for record, 22d of June, 1895. But, aside from this, it was from the date of its record simply an additional evidence of the hostile title asserted by appellant. It was no inferential recognition, as in the Alsobrook case, of the title of any co-tenant. On the contrary, its terms expressly negative the idea that any right or interest is outstanding in *617 any third person. “When one tenant in common of land conveys the whole estate in fee, with covenants of seizin and warranty, and the grantee enters and holds exclusive possession thereof, such entry and possession are a disseizin of the co-tenant.” 45 Cent. Dig., “Tenancy in Common,” sec. 39; Washburne on Real Property, sec. 883.

The entry by John Creel under a claim of title to the entire tract started the running of the statute of limitations. The operation of the statute was not interfered with by the placing of the deed of record. The bar of the statute was completé when ten years’ continuous, exclusive, adverse possession had expired, without regard to the “way such occupancy may have been commenced or continued.”

It is urged by appellee that the fact that the deed from her co-tenant conveying the entire estate was not placed of record until within less than ten years of the institution of the suit becomes material, because until that time there was no ouster and no constructive notice to appellee of adverse claim. Ad-' verse possession in this class of cases does not depend upon actual notice. The principle which requires actual notice, or acts of repudiation equivalent thereto, applies only to cases ■Where there is some relation between the occupant and the holder of the legal title, which imposes upon the occupant the obligation of giving notice, either actually or “shown by such acts of repudiation of their claim as are equivalent to actual notice,” as a condition precedent to the assertion of any hostilp claim by him. This distinction is plainly foreshadowed in the Bentley case, supra. Such familiar cases as landlord and tenant, trustee and beneficiary, tenants in common, and the like, are examples in which the rule applies. But that principle does not control in a case where the occupancy is from its inception the assertion of a hostile title, and there is no fiduciary relationship between the parties. Such, in our judgment, is the instant case. “When the vendee of one tenant in common sets up claim in his own right to the whole tract of land, and enters *618 and. bolds possession open and continuously for more tban the statutory period, his possession is adverse, and a recovery by the other tenants in common is barred, although they had no actual notice of the adverse character of the possession.” Greenhill v. Biggs (Ky.), 2 S. W., 774 ( 7 Am. St. Rep., 579 ); Rutter v. Small, 68 Md., 133 ( 11 Atl., 698 ; 6 Am. St. Rep., 434 ).

'From the entry by John Oreel, in 1885, down to the institution of this suit, in 1903, the continuous occupancy of this land has been actual, open, notorious, and adverse, uninterrupted by any assertion of claim by others, and exclusive and undisturbed. It is true that appellee contends that, having notice that the lands had been partitioned and a certain allotment made to her and her brothers as co-tenants, she was ignorant of her rights, and hence had no opportunity of asserting her own or contesting appellants’ claim. Assuming this to be true, and waiving all consideration of the legal presumption that, being a party to the partition proceedings, she was advised thereof, it cannot avail for her benefit. It is the policy of our law, devised to render secure the title to land, that in cases like this “actual adverse possession” is presumptive notice to all parties in interest of the claim of the occupant. Wilson v. Williams' Heirs, 52 Miss., 492 . In this case the nature of the occupancy, the extent of the possession, the character of the control, the rights of ownership exercised over the land, in the eyes of the law, constitute notice to the world; and, having been uninterruptedly continued for the statutory period, appellants’ title was at - the institution of the suit “full and complete.” ' Wherefore it follows that the decree must he reversed> and the cause remanded.