Bartlett v. Secor

• Decision Date: 09 January 1883
• Parties: BARTLETT AND OTHERS v. SECOR.
• Court: Wisconsin Supreme Court

56 Wis. 520

14 N.W. 714

BARTLETT AND OTHERS

v.SECOR.

Supreme Court of Wisconsin.

Filed January 9, 1883.

Appeal from circuit court, Racine county.Winslow & Bronson, for appellants, Editha N. Bartlett et al.

Geo. B. & A. Cary Judd and E. O. Hand, for respondent, Gurdon Secor.

TAYLOR, J.

This is an action of ejectment to recover the possession of about seven acres of land. The defendant sets up adverse possession for more than 20 years previous to the commencement of the action in bar of plaintiffs' claim. On the trial the plaintiffs showed title in themselves derived from the government. The defendant showed the following state of facts, viz.: That he came into the town in which the land in question is situate in 1841. At that time Mr. Newman, the person through whom the plaintiffs derive their title, owned the lands in question. When defendant came into the country Mr. N. wanted him to settle near him. He wanted the defendant to settle on his land. Newman said he had a claim of 160 acres and would like to have him buy it. It was pretty lowland. The defendant said to Newman, “I can't build on either 40; neither of them come to the road.” Newman then said to him, “If you will come here and live you can have a gore in there,” “a little strip of land there for his building place.” They called it five to seven acres. Newman also told defendant that he, Newman, in making his fence had included a portion of the south 40, and cultivated it with his own land. You can have a piece on the road for a building place, and I will keep the part on the south 40 which I have fenced in. We will exchange, and if you get more than I, or I receive more than you, the one getting the most land shall pay the other at the rate of 10 shillings per acre for the excess. And so they exchanged property, and he went on and built on the land in dispute.

The evidence in the case shows that the defendant built on the land in question in 1841, and took possession of the same, and has lived on and occupied the land from that time continuously to the day of the trial. The whole piece contains about seven acres, five acres of which were inclosed with a fence at the time, and the other two acres were fenced in with a large tract of land which defendant used as a pasture or for cutting hay. The evidence also tends to show that the south 40 acres spoken of were afterwards purchased for the defendant and deeded to him; that Newman and those claiming under him had nearly 10 acres inclosed with Newman's other lands; and that such 10 acres were used by Newman and those claiming under him for about 15 years. Then the plaintiffs, or those under whom they claim, moved the fence on the line of the south 40 acres, and have not occupied that land since. There is no evidence that such fence was removed by the direction of the defendant. Newman died shortly after the defendant went into the possession of the lands in dispute. The defendant gave evidence that he took possession of this land, claiming to own the same, and that he has always asserted his ownership thereof.

The following instructions were given by the circuit judge to the jury, to which instructions the plaintiffs duly excepted.

(1) “The defendant does not deny that he is in possession, but claims by his answer, and has given evidence tending to establish it, that he entered into possession of said premises under a claim of title in himself, and has held such possession for a period of 20 years and upwards adversely to the plaintiffs' and all other rights and title to such land, and claims that such adverse possession is a bar to the plaintiffs' right of recovery.”

(2) “If you find from the evidence that the defendant entered into occupation and possession of the premises in question claiming title thereto exclusive of and hostile to any other right, and that such claim of title was made in good faith, the defendant believing that he had a good title to such land as the owner thereof, and further find that such occupation and possession was actual, and continued uninterrupted and notorious and hostile to any other right or title to said land for a period of 20 years prior to the commencement of this action, and that during all that time the defendant so claimed title to said land, that would constitute adverse possession, and would bar plaintiff's right to recover in this action, and your verdict in such case would be for the defendant.”

(3) “For the purpose of constituting an adverse possession by a person claiming title not founded upon some written instrument, or some judgment or decree, land shall be deemed to have been possessed and occupied in the following cases only: (1) when it has been protected by a substantial inclossure; (2) when it has been usually cultivated and improved.”

(4) “Color of title and claim of title are not in their strict sense synonymous terms. To constitute color of title, a paper title--that is, a deed or other instrument purporting to convey title--is requisite; but claim of title may exist wholly in parol, and may be manifested by acts as well as by words; and if you find from the evidence that the defendant, Secor, built a house or houses, a barn, and other outbuildings, dug a well or wells, planted an orchard, and otherwise improved and cultivated the premises in controversy, this is competent evidence tending to show claim of title on part of defendant upon which an adverse possession may be predicated, and which if continued for 20 years or more would bar the plaintiffs from maintaining this action.”

The jury returned a verdict for the defendant, upon which judgment was entered and the plaintiffs appeal to this court. They assign the following errors: The court erred “(1) in admitting any evidence under the answer; (2) in admitting any evidence of the supposed parol exchange of land; (3) in refusing to charge the jury to return a verdict for the plaintiffs; (4) in giving the instructions to the jury which were excepted to by the plaintiffs; (5) in allowing the defendant and other witnesses to testify that the defendant always claimed to be the owner of the land in controversy; (6) in submitting to the jury any question as to the west two acres of the land in question.”

We think the third separate answer of the defendant was a sufficient answer setting up an adverse possession for more than 20 years under claim of title exclusive of any other right, which if proved...