Bird v. Whetstone

• Decision Date: 06 May 1905
• Docket Number: 14,105
• Parties: H. O. BIRD et ux. v. J. H. WHETSTONE
• Court: Kansas Supreme Court

80 P. 942

71 Kan. 430

H. O. BIRD et ux. v. J. H. WHETSTONE

No. 14,105

Supreme Court of Kansas

May 6, 1905

Decided January, 1905.

Error from Franklin district court; W. B. PLEASANT, judge pro tem.

STATEMENT.

ACTION of ejectment by H. O. Bird and R. E. Bird to recover from J H. Whetstone five acres of land in Franklin county. Upon testimony produced the court made findings of fact, and those pertinent in this consideration are as follow:

"(1) Defendant, Whetstone, was originally the owner of the land in controversy, and conveyed it as a gift by warranty deed to his niece, Hannah Dryden, about the 1st day of August, 1874. The land was then, and till 1879 or 1880, raw prairie that had never been cultivated or improved, and was unfenced. This deed was recorded in the office of the register of deeds of Franklin county, Kansas, on May 13, 1875.

"(2) Hannah Dryden died April 17, 1899, without ever making any conveyance of this land. . . ."

[Then follow findings as to other proceedings in regard to the land which are not now material, and also as to the relationship of certain parties to Hannah Dryden.]

"(5) In 1880 this land adjoined a tract of about sixty acres belonging to Whetstone, which other land surrounded this on three sides, and Whetstone, desiring to enclose his said land, erected a fence around it up to the outside corners of this land, and there joined his fence to a fence that ran along the outer line of this land, thus enclosing this and his land all in one field. This he did (1) for convenience in fencing and farming his land, and (2) because he made the deed to his niece, who was then a young woman, as a gift, and he wished her to build upon it so that some day she might have it for a home. She never took actual possession of it and never improved it or fenced it, or did anything in the way of looking after it or taking charge of it, and he thought that no one else had any interest in it and he would just fence it up and keep it. He set the land out in apple trees and grew a good, bearing orchard upon it. From 1880 until this time he has had exclusive and continuous uninterrupted possession of said land. This was at all times an open and visible possession. Hannah Dryden resided for three or four years after the making of the deed in Whetstone's family, and after that in Wilson county Kansas, where she died. It is agreed upon the trial that the tract of land in dispute contains five acres, and that Hannah Dryden died April 17, 1899. The orchard is now pretty well run down. The rental value of the land in controversy from the time of commencement of this action to time of trial is $ 60."

Upon the facts found and stated the court made the following conclusions of law:

"(1) That the proceedings in case No. 6392 are not res judicata in this action against either of the plaintiffs, and are no bar to their recovery in this action.

"(2) That the defendant's possession of the land was such as to cause the statute of limitations to run in his favor, and that plaintiffs' action is barred by lapse of time.

"(3) That defendant should have judgment for costs, and that his title be quieted."

Judgment was entered accordingly.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

REAL ESTATE--Title by Adverse Possession. Where the owner of vacant and unimproved land conveys it to another the grantee, by reason of his legal title, will be deemed to be in possession thereof, and the grantor may subsequently acquire a new title thereto by a new and independent possession which is adverse, notorious, continuous and exclusive for more than fifteen years.

Benson & Harris, for plaintiffs in error.

William H. Clark, for defendant in error.

JOHNSTON C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.:

The evidence in the case was not preserved, and the rights of the parties must, therefore, be determined by the findings made by the trial court. Whetstone bases his claim to the land on adverse possession, held for a longer time than is necessary to give title by limitation. He enclosed and improved the land in 1880, and since that time has been in the exclusive and continuous possession of it. It is contended that the possession was not such as would ripen into a title, and that when he conveyed the land to Hannah Dryden his continued possession was subordinate to her rights and indicated that he was holding possession for a temporary purpose only, as her tenant at sufferance. It has been repeatedly held that an owner who conveys land and continues in possession of it after his conveyance is recorded is deemed to be holding under his grantee, and in subservience to the record title. (McNeil v. Jordan, 28 Kan. 7; Sellers v. Crossan, 52 id. 570, 35 P. 205; Hockman v. Thuma, 68 id. 519, 75 P. 486.) In...