Brown v. Bocquin

• Decision Date: 24 December 1892
• Parties: BROWN v. BOCQUIN
• Court: Arkansas Supreme Court

20 S.W. 813

57 Ark. 97

BROWN v. BOCQUIN

Supreme Court of Arkansas

December 24, 1892

Appeal from Sebastian Circuit Court in Chancery, Fort Smith District, EDGAR E. BRYANT, Judge.

Decree affirmed, reversed and cause remanded.

Jos. M Hill for appellant.

1. Appellant's title to one-sixth is paramount to appellee's. The Meador judgment was a lien upon the sixth interest, and the marshal's deed related back, thus cutting off the alienation by Latham to Stryker, and by Woods Rogers to Latham.

2. Appellant was entitled to be substituted and subrogated to the interest of Stryker, and have title not only to one-sixth but to all the property in suit. Stryker had but a colorable title, and one subsequently by suit vested in Hershey. Tiedeman on Real Prop. sec. 265; 1 Wash. R. P. (4th ed.) top p. 687, sec. 15; Freeman on Par. & Co-Ten. secs. 409, 531.

3. Appellee cannot set up her title as to one-sixth of the property because (1) she was a purchaser with notice, as were her grantors; (2) Stryker is estopped by res judicata, and appellee was a purchaser pendente lite, and likewise estopped and precluded by the judgment. The judgment in the Federal court was a lien upon the land. 12 Ark. 218; 12 Wall. 150; Black on Judg. sec. 413. A purchaser during the life of a judgment lien acquires no greater right than the judgment debtor, and takes in subordination to the lien. 12 Ark. 421; 15 id. 73; 13 Pet. 464. Every one takes notice of recorded instruments and judgments. 30 Ark. 407; 54 id. 273; Wade on Notice, secs. 46, 97, 307 et seq.; Black on Judg. sec. 607; 50 Ark. 217. A purchaser pendente lite is bound by the decree; he acquires the interest of the defendant subject to the suit. 12 Ark. 421; 15 id. 331; 29 id. 358; 16 id. 168; 30 id. 249; Wade on notice, secs. 339, 342, 344, 347, 348, 392a. The conveyance to Birnie's administrators was a purchase by them and not an assignment of the mortgage. The conveyance was not a merger or assignment but a satisfaction of the mortgage and a sale of the property, and 45 Ark. 376 does not apply. Jones on Mortg. secs. 848, 855, 856 and notes, 951. When partition is had, the parties are considered purchasers for value. 25 Mich. 38; Wasb. Real Prop. (4th ed.) 432.

4. There is no such adverse possession as to give title. When a deed conveys two separate and distinct parcels of land actual occupation of one does not give constructive possession of the other. 28 Ga. 123; Tied. Real Prop. sec 697; 22 P. 1052; 30 Cal. 630. Hershey was co-tenant with appellee. Holding by one tenant in common is holding for all until ouster. More evidence is required to establish adverse possession by a tenant in common than a stranger. 20 Ark. 359; ib. 547; 24 id. 371; 27 id. 527; 42 id. 289; Busw. on Lim. & Adv. Pos. secs. 296-7. Neither conveyance, color of title nor payment of taxes, nor all combined, can give title to land, under the statute of limitations. There must be adverse possession for the requisite time. 45 Ark. 89. It must be continuous for the full period. 48 Ark. 277; 49 id. 266. The burden is on the party claiming adverse possession; the presumption is that possession follows the legal title. Buswell, Lim. & Ad. Pos. sec. 236. The bill should not have been maintained because the land was not occupied by plaintiff at the time suit was brought. Her title was not an equitable one, and the land was not "wild and unimproved." 23 Ark. 747; 37 id. 644; 43 id. 28; 44 id. 436; 51 id. 235, 259; 21 id. 9.

5. Appellee has not acquired title to blocks 81 and 82 by adverse possession. The possession must be actual, hostile, peaceable, continuous, open and notorious. It must be adverse and exclusive. 49 Ark. 66; 34 id. 598; 22 id. 84; 27 id. 92; 48 id. 312; 22 id. 466. Occupancy of one tract is not occupancy of another separate tract. 22 P. 1052; 30 Cal. 630; 3 Wash. R. P. top p. 156 (4th ed.); Tiedeman, R. P. sec. 696. The institution of a suit arrests the statute. 13 Ark. 269; ib. 276; 47 id. 121; 10 id. 479; 23 id. 510; 12 id. 94; 27 id. 343; 33 id. 421; 21 id. 9; 23 id. 336; 24 id. 371. Constructive adverse possession only applies to "wild and unimproved" land, and to land not susceptible of "pedis possessio." As to all other, there must be actual possession. 49 Ark. 266; 48 id. 312; 27 id. 77; 21 id. 9; 68 Pa.St. 189; Wood on Lim. secs. 257-8-9, 262; Busw. on Lim. & Ad. Pos. secs. 252-6-8, 268; 3 Washb. Real Pr. (4th ed.), top 128, 134, 135, 136, 137, 138, 139, 140, 141, 142; Tiedeman, Real Prop. secs. 695-6. Disconnected and occasional acts are wholly insufficient. 4 S.W. 571; 16 id. 692; 12 S.E. 379; 12 S.W. 1068; 21 N.E. 934; 8 S.W. 10.

L. P. Sandels for appellee.

1. A mortgagee, to the extent of his claim, is a bona fide purchaser, and is entitled to notice of every assault upon his title. He is a necessary party to every action affecting his title. 49 Ark. 214; 11 Pa.St. 282; Jones, Mortg. secs. 458, 709, 710; 19 How. 113. The purchaser under foreclosure takes the title of mortgagor and mortgagee. His title relates back to the date of the mortgage, and no transfer or encumbrance subsequent thereto, and no action against the mortgagor to which the mortgagee was not a party, can affect his title. Jones, Mortg. secs. 1654, 1877; 31 Pa.St. 120; 15 Ark. 244; 2 Ohio St. 339. Where the mortgagee, or one holding under him, acquires the title of the mortgagor by purchase, it is tantamount to a foreclosure and sale under the mortgage. 45 Me. 412. See also 41 F. 728; 43 Ia. 512; 16 N.Y. 575; 140 Mass. 49.

2. The actual possession of Stryker and his grantees, under color of title for more than ten years, and the actual and continued possession by Mrs. Bocquin with notorious acts of ownership, constitute title. 31 Conn. 530; 18 Tex. 850; 6 Pa.St. 355; Meigs, 613.

3. Stryker's possession and the acts of Mrs. Bocquin are sufficient to prove title. 21 Ark. 16; 11 Pet. 41; 10 id. 412; 2 Dana, 271; 3 Me. 315; 34 Ia. 564; 25 Mo. 19; 24 Ark. 388; 27 id. 165; 41 id. 304. But, being in constructive possession of the whole, her actual use and possession of part was an adverse occupancy of all the land covered by the deed. 10 Pet. 412; 11 id. 41; Busw. Lim. sec. 254 et seq.; Wood, Lim. sec. 259 et seq.

4. Even if Stryker was a co-tenant of Hershey, he claimed adversely and conveyed the whole to his grantee who enters into possession and claims the exclusive title, and denies Hershey's claim. This is an ouster, and subsequent possession is certainly adverse Buswell, Lim. sec. 300; 3 Metc. 91; 1 Me. 89; 51 Ia. 354; Wood, Lim. sec. 266; 13 B. Mon., 436; 6 Metc. 360; 63 Cal. 586; 5 Cow. 483.

5. As to facts held to constitute possession adverse, and as to possession of one of two separate tracts held under same deed, see 54 Mo. 315; Sedg. & Wait, Tr. Title to Land, 586; 64 Ga. 156; 52 id. 527; 87 Ill. 148; 49 Mo. 447; ib 397.

OPINION

COCKRILL, C. J.

This is a suit by Mrs. Bocquin against Brown, with cross-complaint by Brown to quiet title to land. The parties deraign title from a common source. Each claims to have acquired the undivided interest of Woods Rogers, who was one of six heirs of John Rogers.

Mrs. Bocquin's claim of title is as follows: Woods Rogers conveyed his undivided interest in his deceased father's estate to Latham, and the latter conveyed the same interest to Stryker; the other heirs of John Rogers, treating Stryker as the owner of Woods Rogers' interest in the estate held in common by them, made partition by mutual conveyances; they conveyed to Stryker in severalty one-sixth of the estate, Stryker executing to them conveyances of the interest claimed by him in the shares allotted to each. Stryker conveyed the land in suit--which is a part of the share allotted to him in the partition--to Birnie; it descended to his heirs and was set aside in partition between them to Mrs. Bocquin.

Brown's claim of title is as follows: After Woods Rogers conveyed his undivided interest to Latham, but before Latham's conveyance to Stryker, a judgment for the recovery of money was rendered against Latham and became a lien on his interest in the land; after Latham's conveyance to Stryker, but while the lien of the judgment was subsisting, Latham's interest in the lands was levied upon and sold to satisfy the judgment, and Hershey purchased and obtained a deed in pursuance of the execution sale. Brown has succeeded to Hershey's title.

These facts are alleged in Mrs. Bocquin's complaint, and counsel have not directed our attention to any allegation or proof that qualifies or breaks their force. As Hershey's title related to the date of the judgment, which is anterior to Latham's conveyance to Stryker, it follows that Brown, who claims under Hershey, has the paper title to an undivided sixth interest of the lands in suit. That was the opinion of the trial court.

But the complaint alleged, and the court found the fact to be, that Mrs. Bocquin had acquired title to Hershey's interest by seven years adverse possession. The facts upon that branch of the case are as follows: There are three tracts of land in controversy. One is a tract of about seven acres lying beyond the corporate limits of the city of Fort Smith; the others are two blocks of ground lying contiguous to each other in that city and remote from the other tract. The first actual possession of any of the lands, developed by the evidence was by Stryker. Soon after Latham's conveyance to him, he put a rail fence around a tract of land which embraced the two blocks now in the city limits. It had not been laid off into blocks then. The fence was erected between 1870 and 1872. The time cannot be more definitely ascertained. The complaint, according to the abstracts, contained the following allegations: "On May 2, 1878, Hershey commenced suit against John Stryker and Rogers'...