Bruch v. Benedict

• Decision Date: 29 January 1946
• Docket Number: 2325
• Citation: 62 Wyo. 213,165 P.2d 561
• Parties: PAULINE R. BRUCH, Plaintiff and Respondent, v. EMMA BENEDICT, Defendant, LOUIE BENEDICT, Defendant and Appellant, BARNES BROTHERS, INCORPORATED, ET AL., Defendants
• Court: Wyoming Supreme Court

165 P.2d 561

62 Wyo. 213

PAULINE R. BRUCH, Plaintiff and Respondent, v. EMMA BENEDICT, Defendant, LOUIE BENEDICT, Defendant and Appellant, BARNES BROTHERS, INCORPORATED, ET AL., Defendants

No. 2325

Supreme Court of Wyoming

January 29, 1946

APPEAL from District Court Converse County; C. D. MURANE Judge.

Action to quiet title to a tract of land by Pauline R. Bruch against Emma Benedict Louie R. Benedict and others. Louie R. Benedict filed a cross-petition. From the judgment, Louie R. Benedict appeals.

Affirmed.

Judgment ordered.

For the defendant and appellant the cause was submitted on the brief and also oral argument of Hon. C. O. Brown and Mr. T. C Daniels, both of Douglas, Wyoming.

POINTS OF COUNSEL FOR APPELLANT

The petition does not state a cause of action. The allegations of the Petition and of the Reply are: Plaintiff is the owner and she and her immediate predecessors in title have been in the actual, open, notorious exclusive and continuous possession for more than ten years prior to the commencing of this action. This is not an allegation of present possession. 89-3901 W. R. S. 1931.

While this question was not presented to the Court below, there is abundant authority that it may be presented to the appellate court in the first instance.

The defendant requested the court to make special findings of fact and conclusions of law.

The Wyoming Statute is Sec. 89-1321. This Statute is mandatory and the refusal of the court, when properly requested by one of the parties is error.

Smith v. Harrod (Okla.) 115 P. 1015; Lee v. March, et al. 19 Mich. 11; Cruzan v. Smith, 41 Ind. 288; Hicklin v. McClear, 18 Or. 126, 22 P. 1057; Wiley v. Shars, 21 Neb. 712, 33 N.W. 418; Werner Stave Co. v. Smith (Tex. Civ. App.) 120 S.W. 247; Evans v. Kappes, 10 Iowa 586; Lyman & Co. v. D Waterman, 51 Neb. 283, 70 N.W. 921.

A law making a tax deed presumptive evidence of title has no retroactive effect unless made so by the act itself. 61 C. J 1376. Ganell v. Doe, 2 Ill. 335, 30 Am. Dec. 653; Blackburn v. Lewis, 77 P. 746. An instrument introduced in evidence for a limited purpose should be limited to that purpose. Bullard v. Smith, 72 P. 761; Byrne, et al. v. Byrne, et al., 45 P. 536.

The tax deed was void on its face and was not competent evidence for any purpose unless it was limited to that purpose in its introduction. Foster v. Gray (Colo.) 133 P. 146; Lines v. Diggs, (Colo.) 95 P. 341; McDonough v. Mertins (Kan.) 35 P. 1117.

Where a tax deed does not describe the property bought with the same certainty as a private deed it is void on its face and does not constitute color of title. 1 R. C. L. 713.

If no lands are described nothing can pass. Jackson v. Woodruff (N. Y.) 13 Am. Dec. 625; 61 C. J. 1353; 2 C. J. S. 588. A tax deed void on its face is not color of title and does not start the statutes of limitation in operation. Mathews v. Blake (Wyo.) 92 P. 242; Denny v. Stephens, 73 P. (2) 308; City of Tulsa v. Edwards (Okla.) 239 P. 572; Gomer v. Chaffee, 6 Colo. 614; Black Tax Titles 2nd Ed. Sec. 497; Gibson v. Kueffer, 77 P. 282.

In order that adverse possession may ripen into title there can be no break in the continuity of possession. There can be no abandonment of possession for any period, no matter how brief it may be. Teagarden v. Carpenter, 36 Miss. 404; Hardy v. Bumpstead, 41 S.W. 2d, 226; Hellard v. Hubbard, 169 S.W. 727, Ann. Cas. 1916 A.; Meek v. Davis, 224 S.W. 659; Clark v. White, 48 S.E. 357.

Adverse possession must be among other things, open, notorious, actual and continuous so that the true owner may have an action against the adverse claimant at any time during the statutory period. The adverse claimant's actions must be sufficient to support such an action every single day for the full period. 2 C. J. S. 680, 681. Hardy v. Bumpstead (Tex. 1931) 76 A. L. R. 1488.

No rule of law is better established than that the adverse possession which will ripen into title after fifteen years must be continuous and any break in the actual possession, no matter how short the period, is fatal to the claim of title. Collins v. Flynn, 160 S.W. 496; Barr v. Potter, 57 S.W. 478; Logan v. Williams, 167 S.W. 124; Ashcroft v. Courtney, 121 S.W. 625; Hall v. Hall, 200 S.W. 611; Owsley v. Owsley, 77 S.W. 397.

When the premises are abandoned in the adverse claimant before the expiration of the statutory period--he forfeits all rights acquired by his adverse holding, and the constructive possession of the true owner reasserts itself. 41 So. 835; 60 So. 651; 30 A. 777; 55 S.E. 177; 45 N.E. 113; 3 N.W. 403; 32 S.W. 1086 (Ky.); 21 Maine 350; 76 N.E. 1042; 95 Mich. 491.

Intention to continue possession can only be demonstrated by acts open and notorious and is not to be proven by secrets or avowed purposes of claimant. Virgin v. Land 32 Ga. 573.

For the plaintiff and respondent the cause was submitted on the brief of Maurer and Garst of Douglas, Wyoming, and oral argument by Mr. Joseph Garst.

POINTS OF COUNSEL FOR RESPONDENT

A tax deed may give color of title although it be invalid, or even where absolutely void, unless the land in controversy is not described therein or is so insufficiently described as to render the identification impossible. Whatever may be the source of the invalidity of the deed, if it purports to convey land and in form passes what purports to be the title, it gives color of title. 2 C. J. 188, Sec. 362.

Possession of land by a grantee under the belief that he is the actual possessor of the land conveyed and he intends to so hold, is a holding under a color of title. Schlossmacher v. Beacon Co., 100 P. 1013.

The deed in question contains a description of land which is referred to by the phrase in the deed, "last hereinabove described", and amply describes the lands intended to be sold. 2 C. J. 179, Sec. 342; 1 A. J. 906, Sec. 203.

In Wyoming, there is no statute requiring adverse possession to be founded upon color of title. Bryant v. Cadle Adm., 18 Wyo. 64.

A hostile possession may be based upon a void conveyance or other muniment of title. Bryant v. Cadle Adm., supra.

Except where required by statute, color of title is not required to constitute adverse possession; but in the absence of color of title, the possession extends only to the limits of the visual actual occupancy, which actual possession of part of a tract, with color of title to the whole, extends the possession to the limits fixed by the color of title. Brooks Co. v. Childs, 2 A. L. R. 1453; Bryant v. Cadle, Adm., supra.

Adverse possession is founded upon the intent with which the occupant has held possession and this intent is to be determined by what he has done. Rock Springs v. Strum, 39 Wyo. 516. 1 A. J. 7, Sec. 9; 2 C. J. 100, Sec. 134. Abandonment is question of fact for the jury. 29 A. 376. Appellate Court will not reverse simply because upon the evidence it would have arrived at a different conclusion and will only interfere when the findings are so clearly against the weight of evidence that no mind of fair intelligence, faithfully exercised, can reasonably supposed to have arrived at the result complained of. 1 Wyo. 396; 2 Wyo. 113, 118.

Straying cattle belonging to persons claiming no title to land adversely held do not by their occasional trespassing intercept the continuity of the adverse possession of such land. Zellman v. Martin, 147 N.W. 371.

A mere entry by a trespasser on lands occupied by another does not constitute a disseizer unless the occupant is forceably expelled or there is some act regarded in law equivalent to expulsion. Glover v. Pfeuffer, 163 S.W. 984.

BLUME, Chief Justice. RINER, J. and KIMBALL, J., Concur.

OPINION

BLUME, Chief Justice.

This is an action, brought by Pauline R. Bruch, to quiet title to the Southwest Quarter of Section Twelve, and the West Half of the West Half of Section Thirteen, Township 33 North, Range Sixty-nine West of the Sixth P. M., in Converse County, Wyoming. The action was commenced on July 22, 1944; none of the many parties appeared in the action except Louie R. Benedict. The Court entered judgment for the plaintiff, quieting title to the foregoing land in her. From that judgment the defendant, Louie R. Benedict, has appealed. He will ordinarily be referred to herein as the defendant, and the plaintiff as plaintiff.

The petition, among other things, alleged that "plaintiff is the owner and she and her immediate predecessors in title have been in the actual, open, notorious and exclusive and continuous possession for more than ten years prior to the commencement of this action" of the lands above described. The defendant answered, admitting some of the allegations and denying others. In Paragraph III he stated that "the plaintiff herein unlawfully keeps this answering defendant out of possession of said property and denies the right of this answering defendant in said real property". The defendant filed a cross petition claiming title to the property and the right to the immediate possession thereof. Plaintiff in reply alleged, among other things, that she and her predecessors in interest to said land had been in possession thereof ever since July 11, 1928.

The land in controversy was filed on as a homestead by one Henry Benedict, father of the defendant Louie, about 1916, and he apparently obtained a patent for the land. He lived on the land and cultivated it to some extent up to the time of his death on July 24, 1924. He seemingly had given a mortgage against the land during his life time, the amount of which does not appear. His estate was probated. The decree settling the estate recites that the land was mortgaged for more than it was worth; that the mortgage had been due for some time and that it is for the interests of the estate to let it be...