Cooper v. Tarpley
| Decision Date | 08 May 1942 |
| Docket Number | 16659. |
| Citation | 41 N.E.2d 640,112 Ind.App. 1 |
| Parties | COOPER et al. v. TARPLEY et al. |
| Court | Indiana Appellate Court |
Cooper Royse, Gambill & Crawford, of Terre Haute, and Embree & Hall, of Princeton, for appellants.
Kern Pearce & Pearce, of Carmi, Ill., for Geo. Negley.
Arthur S. Wilson, of Princeton, for Hutchins, Huddleston & Gavin, Inc., and another.
Sanford Trippet, of Princeton, for Thos. Jolley and others.
On February 21, 1871, Levi Fifer was the owner of the West half of the northwest quarter of fractional section 18, Township 3 South, Range 13 West, containing about 41 acres. The north boundary line of the above described real estate is the Wabash River. The tract involved in this action is a part of the above described real estate and runs along the bank of the Wabash River a distance of 1206 feet.
On September 9, 1892, and at all times since, a fence has been maintained along the south line and during a part of the time on the west line of the involved tract. The south line at the east end of the tract is 195.5 feet south of the river and at the west end is 148.3 feet south of the river.
On February 21, 1871, Levi Fifer sold to James Lewis a parcel of one acre having a frontage of 264 feet on the river beginning 346.5 feet west of the east line of the tract which we have described as fronting on the river a distance of 1,206 feet. This divided the tract into three parcels, the east 346.5 feet which we will hereafter refer to as tract A, the middle 264 feet which we will hereafter refer to as tract B, and the west 595.5 feet which we will hereafter refer to as tract C.
In the deed from Fifer to Lewis the real estate sought to be conveyed was by mistake described as being in the southwest quarter of fractional section 18, instead of the northwest quarter and this mistake has been carried forward in practically all the deeds in the chain of title to tract B from that time to the present. Tract B changed hands several times between 1871 and September 9, 1892, when it was finally conveyed to Sarah A. Douglas, the erroneous description still being used.
In 1904 Sarah A. Lamar, the same person as Sarah A. Douglas, above referred to, conveyed to George P. Bowman, Edwin P. Bowman Samuel P. Ronalds and Hugh L. Ronalds. On July 19, 1904, the two Ronalds conveyed their interests to the two Bowmans. In 1923 the heirs of George P. Bowman conveyed their interests to Edwin P. Bowman and Francis R. Bowman. In 1926 the Bowmans conveyed to George P. Bowman & Sons, Inc., an Illinois Corporation. In 1935 a receiver was appointed for the corporation and in 1936 the receiver conveyed to appellees George J. Jolley and Thomas S. Jolley. In all of the above deeds the real estate was described as being in the southwest quarter instead of the northwest quarter.
Appellants are now the record owners of tracts A and C by reason of a chain of title relating back to Levi Fifer.
This action was brought by appellants against appellees George J. Jolley, Thomas E. Jolley and a number of others to quiet title to tracts A, B, and C. Appellees Jolley and Jolley sought by cross-complaint to quiet their title to the same real estate.
The trial court found the facts specially, entered its conclusions of law and rendered judgment that title be quieted in appellants as to tract A and in appellees as to tracts B and C. On this appeal no question is being raised as to tracts A and B. The only question presented is as to tract C.
Appellants duly excepted to the conclusions of law and filed their motion for a new trial on the grounds that the decision is not sustained by sufficient evidence and is contrary to law. This motion was overruled.
Appellants here contend that the trial court erred in its conclusions of law and in overruling their motion for a new trial.
Under the specifications of their motion for a new trial appellants point to certain facts which they contend are not supported by the evidence and are outside the issues and therefore contrary to law. The findings complained of are not in our opinion essential and may be disregarded. The facts as we have related them in tracing the record title, together with the following facts bearing upon the question of adverse possession, are properly found by the court, are fully supported by the evidence and within the issues.
When Sarah A. Douglas, on September 9, 1892, bought tract B, a church known as "Shiloh Church" was located on tract A and remained there until it was either blown down or washed away by flood waters in 1913. Tract A was known as the Shiloh Church tract. On September 9, 1892, Sarah A. Douglas took possession of all the real estate west of the Shiloh Church tract which was inclosed by the fence. That included both tracts B and C.
She built her house and appurtenant buildings on tract C and proceeded to use tracts B and C as one parcel of real estate until she conveyed to the Bowmans and Ronalds in 1904. In the deed to them was the following reservation: "Use of the dwelling house on the above described land is hereby reserved for my personal use during my life time." Her possession was open, notorious and continuous.
Likewise when she conveyed to the Bowmans they took possession of tracts B and C treating them as one parcel. They were engaged in the grain business and used the entire parcel in their business. They built cribs, an elevator, a scale house and other buildings, some of which built in 1916 cost approximately $7,000. The corporation succeeded to the grain business at the time it received the conveyance of the real estate. The Bowmans, the corporation and the Jolleys were at all times, as they succeeded to the title to tract B, actually in open, notorious and exclusive possession of all of tracts B and C, treating them as one parcel and as though it was all contained within the descriptions in their respective deeds.
It should be noted that the above statement as to the recital contained in the deed from Sarah A. Lamar to the Bowmans and Ronalds is not set forth in the special finding. However, it is undisputed in the evidence and the finding will be considered as properly amended here. Colonial Fire Underwriters, etc., v. German, 1941, 108 Ind.App. 601, 31 N.E.2d 68.
Upon the above facts could the trial court base a conclusion of law that appellees Jolley are the owners of tract C?
Appellants insist that neither appellees Jolley nor their predecessors in possession had any color of title to tract C.
It is not essential to the acquisition of title by adverse possessions that the entry should be under color of title. The absence of color of title only affects the extent of possession. The rights of those who enter upon lands without color of title are confined to that portion which is subjected to their actual possession. There can be no constructive possession. Welch v. Capital Paper Co., 1921, 76 Ind.App. 416, 132 N.E. 313; Bowen v. Swander, 1889, 121 Ind. 164, 22 N.E. 725; Roots v. Beck, 1886, 109 Ind. 472, 9 N.E. 698; May v. Dobbins, 1905, 166 Ind. 331, 77 N.E. 353; Swanson v. New York Central R. R. Co., 1925, 83 Ind.App. 580, 149 N.E. 353.
In the instant case actual possession was taken of the entire tracts involved. No question as to constructive possession being presented under the facts, it is not material that appellees Jolley and their predecessors in possession lacked color of title.
In order to establish title by adverse possession, the possession must be (...
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