Brose v. Boise City Railway & Terminal Co.

Decision Date23 December 1897
Citation5 Idaho 694,51 P. 753
PartiesBROSE v. BOISE CITY RAILWAY AND TERMINAL CO
CourtIdaho Supreme Court

TITLE TO REAL ESTATE-AMBIGUITY IN DEED.-If a direction or course given in a deed is impossible or senseless, it must be omitted or disregarded. And if the other calls or parts of the description are sufficient to identify the land conveyed the deed must be sustained.

TITLE BY PRESCRIPTION-ADVERSE POSSESSION-PAYMENT OF TAXES.-Adverse possession could be established under the laws of this territory prior to May 21, 1881, without proving payment of taxes. Section 150 of the Code of Civil Procedure (see 10th Sess. Laws 1881, p. 29) made it necessary, in order to establish adverse possession, to prove the payment of taxes.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Reversed and remanded, with instructions.

Wyman &amp Wyman, for Appellant (Selden B. Kingsbury, of Counsel).

The deed from Slater to Curtis is dated February 4, 1869, and is recorded in book 3 of Deeds, at page 432, Ada county records. This was executed seven months prior to the deed to Slater by Davis and is also a quitclaim deed, except it contains, after the usual granting clause, the words, "present and prospective" and after the description the further words, "Relinquishing, etc., all and every claim, both in law and in equity, I have now or may acquire by reason of my pre-emption right or entry of any portion thereof and to any part or parcel of said above-described land, which may be embraced, included or covered by any patent I, or my successors, may obtain for said land and premises." This shows that at that time Slater expected to acquire the legal title to the whole of this tract described in this deed, to which he had at that time some claim of right, and does not limit it to the portion acquired under his patent and pre-emption right, but he intended that any after-acquired title from any source should vest at once in Curtis, and such is its legal effect. (Clark v. Baker, 14 Cal. 629 76 Am. Dec. 449; 3 Washburn on Real Property, 5th ed., 114; Phelps v. Kellogg, 15 Ill. 137; Rawle on Covenant for Title, 407; Idaho Rev. Stats., secs. 2927, 2928.) If sufficient remains after rejecting a part of the description which is false the deed will take effect. (Devlin on Deeds, sec. 1016, p. 329, sec. 1038, p. 355; Reamer v. Nesmith, 34 Cal. 624.) If there is a conflict between the monuments and courses and distances, the latter must yield. (Newson v. Pryor's Heirs, 7 Wheat. 7.) The calls north, northerly, etc., must give way to any other description of a line which makes its location reasonably certain. (Devlin on Deeds, sec. 1035; Colton v. Seavey, 22 Cal. 502, 503.) And a street is a certain and definite call, and if the direction given is senseless it should be omitted. (Faris v. Phelan, 39 Cal. 613; Kruse v. Wilson, 79 Ill. 233.) The reservation of the Curtis tract in the Slater deed to Miller describes it by reference to the date of the conveyance and book and page of the record thereof. This reference to the prior deed is a sufficient description. (Tyler on Law of Boundaries, etc., 132.) The construction put upon the deed by the parties themselves is entitled to great weight. Curtis went into possession of a tract, including that in dispute, under his deed, and each grantee did the same, and for twenty-one years their possession was undisturbed by word or deed, and it should not be disturbed now. (Mulford v. Le Franc, 26 Cal. 88; Stone v. Clark, 1 Met. 378, 35 Am. Dec. 370, and note; Haring v. Van Houten, 22 N. J. L. 61; Devlin on Deeds, 851.) And a deed is not void because from lapse of time it is impossible to identify the land embraced in it; its identity can be identified by common reputation. (Nixon v. Porter, 34 Miss. 697, 69 Am. Dec. 408.) Extrinsic evidence is always admissible to identify and establish the calls in a deed. (Abbott v. Abbott, 53 Me. 356; Lane v. Thompson, 43 N.H. 320.) Lemp entered upon the whole tract described in his deed from Curtis, under both "claim" and "color" of title, January 4, 1872, and this included the tract in dispute. (Hall v. Law, 102 U.S. 466; Tryon v. Huntoon, 67 Cal. 328, 7 P. 741.) His title on January 4, 1877, became a vested right in fee simple, which the legislature could not take away by change in the requirements of adverse possession. (Sutherland on Statutory Construction, sec. 480; Johnson v. Brown, 63 Cal. 391.) The statute of limitations began to run against plaintiff October 5, 1869, the date of the Davis patent. (Le Roy v. Rogers, 30 Cal. 230, 236; Webber v. Clarke, 74 Cal. 19, 15 P. 431.) And plaintiff was barred by section 4037 of the Revised Statutes of Idaho October 5, 1874, even though it be held that the Curtis deed was void. (Leffingwell v. Warren, 2 Black (U.S.), 603, 605; Tryon v. Huntoon, 67 Cal. 328, 7 P. 741.) As plaintiff has failed to show any title to the property in himself, or any right of possession, this appeal being from the judgment as well as order overruling the motion for new trial, the judgment should be reversed, with instruction to the court below to enter judgment in favor of the defendant. (McAuliff v. Parker, 10 Wash. 141, 38 P. 744; Woodward v. Faris, 109 Cal. 12, 41 P. 781.) The fact that the land was misdescribed in the proceedings for its sale and administrator's deed did not interfere with the operation of the statute of limitations. The statute applies to just such defective sales as this; if the sale had been valid and effective, the defendant would have had no use for the statute. (Bay v. Posner, 78 Md. 42, 26 A. 1084; Grim v. Curley, 43 Cal. 250; Michigan L. & I. Co. v. Thoney, 89 Mich. 226, 50 N.W. 845; Black v. Tennessee C. & I. R. R. Co., 93 Ala. 109, 9 So. 537; Black v. Pratt Coke Co., 85 Ala. 504, 5 So. 89; Moore v. Wiley, 44 Kan. 736, 25 P. 200; Brown v. Morgan, 44 Minn. 432, 46 N.W. 913; Gee v. Clark, 42 La. 918, 8 So. 627; Vandall v. St. Martin, 42 Minn. 163, 44 N.W. 525; Hebard v. Scott, 95 Tenn. 467, 32 S.W. 390; Ocean Beach Assn. v. Yard, 48 N. J. Eq. 72, 20 A. 763.) When the plaintiff in ejectment introduces a deed containing an exception, the burden is on him to show that the land in question is not included within the exception. (Reusens v. Lawson, 91 Va. 226, 21 S.E. 347, 348, 356; Maxwell Land Grant Co. v. Dawson, 151 U.S. 586, 14 S.Ct. 458; Hawkins v. Barney's Lessee, 5 Pet. 457; Taylor v. Taylor, 3 A. K. Marsh. 18; Guthrie v. Lewis, 1 T. B. Mon. 142.)

N. M. Ruick, for Respondent.

The quitclaim deed of Davis to Slater passed all the title and estate of the former to the land described therein as effectually as a deed with full covenants. (McConnel v. Reed, 4 Scam. 117, 121, 38 Am. Dec. 124, 126, 130, note; Hamilton v. Doolittle, 37 Ill. 478, 482; Kyle v. Kavanagh, 103 Mass. 356, 359, 4 Am. Rep. 560; Carpentier v. Williamson, 25 Cal. 154, 169; Graff v. Middleton, 43 Cal. 341, 343, 344.) And takes effect by relation back to the final certificate or "grant." (Thompson v. Spencer, 50 Cal. 532, 533.) The description of the premises conveyed must be sufficiently definite and certain to enable the land to be identified; otherwise it will be void for uncertainty. (Devlin on Deeds, sec. 1010, and authorities cited in note; People v. Klumpke, 41 Cal. 263, 278.) Parol evidence not admissible to explain a description insufficient on its face. (Devlin on Deeds, sec. 1010; Brandon v. Leddy, 67 Cal. 43, 44, 7 P. 33; 1 Am. & Eng. Ency. of Law, p. 529, tit. "Ambiguity.") If defendant's grantors, or the persons whom defendant claims to have held the land adversely, did not "enter into possession of the property under claim of title . . . . founding such claim upon a written instrument," etc., such possession could not be extended beyond the possession pedis which is definite, positive and notorious. (Idaho Rev. Stats., sec. 4042; Core v. Faupel, 24 W.Va. 238, 245.) Brose purchased the tract in dispute from Miller in December, 1890, and in January, 1891, entered into possession and began improvements. Thus was the possession, if any, of the defendant's grantors interrupted, and the continuity broken by entry on the part of the rightful owner. An interruption of the possession, but for a day, even by force or fraud, will stop the statute of limitation running--which begins anew to run from the day, only, of a re-entry. (Olwine v. Holman, 23 Pa. St. 279, 284; San Francisco v. Fulde, 37 Cal. 349, 352, 99 Am. Dec. 278; City of San Jose v. Trimble, 41 Cal. 536, 543; Sherin v. Brackett, 36 Minn. 152, 30 N.W. 551.)

SULLIVAN, C. J. Huston and Quarles, JJ., concur.

OPINION

SULLIVAN, C. J.

This is an action in ejectment. It is alleged in the complaint that on the twentieth day of December, 1890, the plaintiff (who is the respondent here), was the owner and seised in fee of the premises described in the complaint, and alleged ouster by the appellant, the Boise City Railway and Terminal Company, a corporation, on or about the twentieth day of May, 1893. The answer specifically denied the allegations of the complaint, except, however, it admitted that it was in possession of the premises, but alleged that its possession was lawful, and also set up as a further defense the statute of limitations. By supplemental answer it averred that since the commencement of the action it had acquired title to the premises, and was the owner and entitled to the possession thereof. Upon the issues thus made, the cause was tried by the court and a jury, and a verdict was rendered in favor of the plaintiff, and judgment entered thereon. Appellant's motion for a new trial was denied, and this appeal is from the judgment and order denying the motion for a new trial.

It appears from the transcript that one J. H. Slater settled upon unsurveyed lands of the United States,...

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