Core v. Faupel.

• Decision Date: 03 May 1884
• Citation: 24 W.Va. 238
• Court: West Virginia Supreme Court
• Parties: Core v. Faupel.

24 W.Va. 238

Core

v.Faupel.

Supreme Court of Appeals of West Virginia.

Submitted September 15, 1883

Decided May 3, 1884.

1. To constitute such a possession, as will bar the title of the legal owner to land, it must be adverse, actual, visible and exclusive, continuous and under a claim or color of title. If any one of these constituents is wanting, the possession will not effect a bar of the legal title, (p. 243.)

tory contract, which leaves the legal title in his vendor and contemplates a further conveyance of the complete title, his entry will be in subordination to the legal title; and in such case, as also in the case of lessee, trustee and other similar cases where one is in under the owner of the legal title, a privity exists, which precludes the idea of a hostile or tortious possession, that could silently ripen into an adverse possession under the statute of limitations. (p. 243.)

3. The possession of a purchaser under an executory contract is not

adverse to his vendor, although he has paid all the purchaseI money and used and occupied the land for his exclusive benefit.

His contract, being executory and made in contemplation of a further conveyance of the legal title, recognizes the title in his vendor, and his holding will be regarded as in subordination thereto and not adverse. But where the purchaser is in possession under a complete legal title, such as a deed purporting to convey the land, he will be considered as holding adversely to all the.world including his vendor from whom his title and possession are derived, (p. 244.)

4. The most usual modes of actual possession is by occupancy, use or

enjoyment, residence, cultivation, enclosure and improvement, (p. 244.)

5. Adverse possession in any case, in order to effect an ouster of the

owner, must in its nature possess such notoriety, that the owner may be presumed to have notice of it and of its extent. It must be open, visible and exclusive, (p. 245.)

6. An adverse possession must be continuous and uninterrupted.

There can be no constructive possession against the owner. When there is no actual possession, the law ascribes the possession to the owner. Consequently, if at any time during the statutory period the adverse claimant does not continue in the possession, so that he may be sued as a trespasser, he can not protect his claim by the statute of limitations, (p. 246.)

7. The principal office of a claim or color of title is to define the

boundaries and fix the extent of the adverse holding. If it is a mere claim of title, the adverse holding will be limited to the actual enclosure of the claimant. But if it is a deed or other paper-title, and the possession is exclusive, it will be regarded as co-extensive with the boundaries contained in such deed or paper. The color of title, however, may be good or bad, legal or equitable, (p. 247.)

The facts of the case are stated in the opinion of the Court. R. F. Blair for plaintiff in error. Leonard $ Caldwell for defendant in error. Snyder, Judge:

Action of ejectment brought by A. S. Core against Catharine Faupel in the circuit court of Doddridge county to recover the possession of a tract of one hundred and forty-four acres of land in said county. The declaration was filed and the action commenced at the October rules 1876. Before the trial Elizabeth Scheon, under whom it was alleged the defendant, Faupel, claimed as tenant, was made co-defendant and both defendants pleaded not guilty. At the May term, 1880, the action was tried by jury and a verdict returned for the defendants on which the court entered judgment. During the trial the plaintiff excepted to certain rulings of the court and tendered his bill of exceptions, which is made a part of the record; and to review said rulings the plaintiff has brought the case before this Court.

It appears from the bill of exceptions, that J. H. Bis Debar, in the year 1855, obtained from the commonwealth of Virginia a grant for three thousand three hundred acres of land which, it was agreed on the trial, covered the land in controversy and that both the plaintiff and the defendants claim title under said grant; that the title of the plaintiff is derived as follows: By deed, dated April 23, 1865, and duly recorded May 23, 1865, the said Dis Debar conveyed to M. Edmiston, trustee, among other lands, a tract of one thousand three hundred and sixty acres, part of the aforesaid grant, in trust to secure a bond of twenty thousand dollars due to A. S. Core; that C. J. Stuart as substituted trustee in said trust-deed sold to the plaintiff, Core, under said deed nine hundred and forty-one acres of land, being a portion of said tract of one thousand three hundred and sixty acres; that the title of the defendant, Elizabeth Scheon, is derived as follows: By deed dated February 10, 1865, acknowledged August 30, 1866, and duly recorded November 13, 1866, the said Dis Debar conveyed to John Scheon one hundred and forty-four acres of land, part of said grant of three thousand three hundred acres, and by mesne conveyances the title of said John Scheon to said one hundred and forty-four acres was vested in the said defendant. These being the respective paper-titles of the parties, the plaintiff gave evidence to the jury tending to prove, that the deeds under which his title is derived convey the land in dispute; and the defendants introduced evidence tending to prove the following facts: That the deeds under which the plaintiff claims do not include the land in dispute; that Frederick Faupel entered upon said land as a tenant of said Dis Debar in the year 1860, under a lease for six years and continued to reside on it under said lease for about four years; that in 1864, the said Dis Debar made a contract for the sale of the one hundred and fortyfour acres in controversy to John Scheon, who paid then one hundred dollars on the purchase and the remainder of the contract price, eight hundred and fifty-one dollars, was not to be paid until October or November, 1866, and that from the date of said purchase said Frederick Faupel became the tenant of said John Scheon and so continued to the time of his death, since which time the defendant, Catharine Faupel, has been the tenant of said John Scheon and those claiming under him; that the defendants and those under whom they claim, have occupied and improved the said land from the date of said contract of purchase, in 1864, continuously up to the time of the trial of this action. It is stated in the bill of exceptions that there was no evidence tending t'o prove that either the plaintiff or the trustees in the deeds under which he claims, had any actual notice of the sale by Dis Debar to John Scheon until November 13, 1866, when the deed to the latter was recorded. The following instructions to the jury were asked by the defendants and the plaintiff respectively:

defendants' instruction.

"The jury are instructed that if they believe from the evidence that the defendants were in possession of the land in controversy under a claim and color of title adverse to the plaintiff, and exercising notorious and perpetual ownership over the same, such as residence on the land, claiming the land, &c, more than ten years before the commencement of this suit, then they must find for the defendant."

plaintiff's instructions.

"If the jury believe from the evidence that the said one hundred and forty-seven acres of land was conveyed by the said deeds from Debar to Edmiston, trustee, and from Stewart, trustee, to the plaintiff, then the plaintiff is entitled to recover the same in this action unless the jury further believe that the defendants, and those under whom they claim, held possession of the said one hundred and forty-seven acres of land for ten years prior to the commencement of this action under title adverse to the said Debar and the plaintiff, and the possession of the defendants, and those under whom they claim, was not adverse to the title of the plaintiff until the 13th day of November, 1866, when the deed from Debar to said John Scheon was admitted to record in Doddridge county."

The plaintiff objected to the defendants' said instructions and the defendants objected to that of the plaintiff. The court gave that of the defendants to the jury and refused to give the whole of the plaintiff's instructions but gave to the jury that part of it not in italics. To the ruling of the court in giving the defendants' instructions and refusing to give the whole and to giving only part of his instruction the plaintiff excepted. The propriety or the impropriety of these rulings are the only matters brought to this Court for consideration. These instructions involve the application of the statute of limitations to real estate or, as it is generally called, the doctrine of adversary possession.

The effect of the statute is to render a continued adversary possession for ten years conclusive in the action of ejectment not only against the possession but the title of the true owner. This result is so absolute, that such adversary possession operates as a transfer of the legal title and is not only a sufficient defence on the part of the defendant, but is sufficient ground for the plaintiff to recover the land, to which he has so acquired title, against the strongest proof of better title.

The inexorable operation of the statute, disregarding as it does entirely the original merits of the controversy, furnishes a sufficient reason for excluding mere presumptions of the facts necessary to effect the bar, and for exacting clear and decisive proofs of their existence. When such proofs are furnished, the statute should receive a fair and liberal interpretation.

"When we look.to the elements of an adversary possession, in reference to conflicting claims, and the statutory proscriptive bar, we find that it consists of an exclusive, actual, continued possession, under a colorable claim of title" Taylor v. Burn sides, 1 Gratt, 165, 190.

The nature of that adverse...