Allen v. Allen

• Decision Date: 25 September 1883
• Citation: 16 N.W. 610,58 Wis. 202
• Parties: ALLEn. v. ALLEN, IMPLEADED, ETC.
• Court: Wisconsin Supreme Court

58 Wis. 202

16 N.W. 610

ALLEn.

v.ALLEN, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed September 25, 1883.

Appeal from circuit court, Sauk county.M. Bentley and Tenney & Bashford, for respondent, Isaac B. Allen.

Parker & Barlow and Lusk & Perry, for appellant, Lydia C. Allen, impleaded, etc.

TAYLOR, J.

This is an action of ejectment. The appellant sets up adverse possession for more than 20 years previous to the commencement of the action as a defense. Upon the trial in the circuit court the judge instructed the jury to render a verdict for the plaintiff. To this instruction the appellant excepted. The only material question raised upon this appeal is, was there any evidence given on the trial which tended to prove the defense of adverse possession set up by the appellant? If there was, then it was error to direct a verdict for the plaintiff.

The evidence upon the trial showed that the respondent, Isaac B. Allen, was the patentee of the United States, and that he had made no conveyance thereof. Lydia C. Allen was the widow of Abram Allen, deceased, the father of the respondent, and that she claimed title to the land as devisee under the will of said Abram Allen. The will of Abram Allen was dated December, 1877, and was probated in 1878. The land was patented to the respondent by the United States in 1849. It was probably entered by the father a year or two before the patent was issued. In 1849, when the patent was issued, the respondent was a child about five years old, and lived with Abram Allen, his father, and continued to live with him from that time until he became of age, and for some years after. Shortly after the land was entered, and before the patent was issued to the son, the father, Abram Allen, took possession of the land, and has occupied it continuously from that time until his death, in 1878, improved the same, built a barn and a small house on it, and paid the taxes thereon. There is no evidence in the case showing that the father asserted any title to the land hostile to the title of his son, unless his possession, use of, and improvement of the same for over 30 years is evidence of such assertion of title, until a few months before his death, and about the time he made his will devising the lands to his wife, the present appellant. He then said to the witness Van Ingen, upon being spoken to about this land belonging to his son: “I will tell you how it is. I pre-empted that land myself in Isaac's name. I done it to get out to the road. I was cut off from the road. I had preempted all the land I could before this, and could not get it in any other way, only pre-empting it in his name, (Isaac Allen's.) I ran the river to earn the money to pay for it, and I have a duplicate for the deed. Now, what do you think about it? It is no more Isaac Allen's than it is yours.”

The Revised Statutes of 1878, § 4210, provide that “in every action to recover real property, or the possession thereof, the person establishing a legal title to the premises shall be presumed to have been possessed thereof within the time required by law, and the occupation of such premises by another person shall be deemed to have been under and in subordination to the legal title, unless it appear that such premises have been held and possessed adversely to such legal title for ten years, under the provisions of the next section, or twenty years under the provisions of section 4213, before the commencement of such action.” Section 4213 reads as follows: “When there has been an actual continued occupation of any premises under a claim of title exclusive of any other right, but not founded upon any written instrument, or any judgment or decree, the premises so actually occupied, and no other, shall be deemed to be held adversely.” Section 4207, Rev. St., is as follows: “No action for the recovery of real property, or the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises within twenty years before the commencement of such action.” Under these provisions of the statute it appears to us very clear that the plaintiff was entitled to judgment upon the evidence in the case. He proved his legal title to the premises beyond question by the production of the patent from the United States. Having shown himself possessed of the legal title under the provisions of section 4210 above quoted, he is presumed to have been possessed thereof within the time required by law,--that is, within 20 years, as prescribed in section 4207,--and the occupancy of the premises by any other person “is deemed to be in subordination to the legal title,” etc. This legal presumption may, however, be overcome by proof of an adverse possession of 20 years under section 4213, and when such legal presumption is overcome by proof of such adverse possession, the plaintiff cannot recover, because he fails to show a possession or seizure of the premises in question within 20 years before the commencement of the action, as prescribed in section 4207. The plaintiff's proofs having established his legal title, the burden of proof is on the defendant to show an adverse possession in this case under section 4213, above quoted.

On the part of the learned counsel for the appellant it is insisted that the mere proof of occupation or possession of the premises by the defendant, or of those under whom she claims, for more than 20 years, is of itself evidence that such occupation is “under a claim of title exclusive of any other right,” within the meaning of said section 4213, without any further proof. For the purposes of this case, it may be admitted that proof of occupation and use by the defendant, or those under whom she claims, for more than 20 years, where such occupation and use are consistent with the claim of ownership, such claim may be presumed; and when nothing else appears in the case, it would be a question for the jury to determine whether the entry was under a claim of title exclusive of any other right, and the possession adverse under said section 4213. In McPherson v. Featherstone, 37 Wis. 632, this view, as to the effect of a continued possession for more than 20 years, seems to have had some sanction. In Link v. Doerfer, 42 Wis. 391-394, the late learned Chief Justice RYAN seemed to take a different view of the effect to be given to mere proof of possession and use, as constituting the defense of adverse possession. He holds that under section 8, Rev. St. 1858, now section 4213, Rev. St. 1878, it is necessary to prove an entry under claim of title in order to set the statute running, and that proof of possession, under claim of title for 20 years, would be presumptive evidence that the entry was made with such claim of title; but that proof of possession merely, for 20 years or more, would not raise a presumption that the entry was adverse and so bar the legal title.

In the case of Link v. Doerfer the proof showed that Doerfer had been in possession of the land for 16 years, working and improving the same, but there was no proof that he made any claim of ownership except what might be inferred from the fact that he worked and improved the same, rendering no account to the real owner. The learned chief justice says “that after continuous occupation under claim of title for 20 years, the entry shall be deemed to have been adverse. But such presumption would only shift the onus probandi, and does not disturb the rule that the entry controls the claim...