Dignan v. Nelson

• Citation: 72 P. 936,26 Utah 186
• Decision Date: 27 June 1903
• Docket Number: 1447
• Parties: DOMINICK P. DIGNAN and JOSEPH L. DIGNAN, Minors, by EMMA McGILL, Their Guardian, and EMMA McGILL, Appellants, v. ELIZA NELSON, LILA S. NELSON, O. M. WOODWORTH and WILLIAM PICKETT and ISAAC D. GREEG, Partners, doing business as PICKETT & GREEG, Respondents
• Court: Supreme Court of Utah

72 P. 936

26 Utah 186

DOMINICK P. DIGNAN and JOSEPH L. DIGNAN, Minors, by EMMA McGILL, Their Guardian, and EMMA McGILL, Appellants, v. ELIZA NELSON, LILA S. NELSON, O. M. WOODWORTH and WILLIAM PICKETT and ISAAC D. GREEG, Partners, doing business as PICKETT & GREEG, Respondents

No. 1447

Supreme Court of Utah

June 27, 1903

Appeal from the Third District Court, Summit County. --Hon. S.W Stewart, Judge.

Action in ejectment. From a judgment in favor of the defendants, the plaintiffs appealed.

AFFIRMED (except as to costs).

S. P Armstrong, Esq., for appellants.

Messrs Snyder & Wight and Henry Shields, Esq., for respondents.

BARTCH, J. BASKIN, C. J., and McCARTY, J., concur.

OPINION

BARTCH, J.

--This is an action in ejectment, instituted August 30, 1899, by the heirs of Dominick Dignan, deceased, to recover possession of lots 9, 10, 11, 12, and 13, block 6, the same being situate in Park City, Utah. The plaintiffs Dominick P. and Joseph L. Dignan were minors, aged, respectively, twenty and eighteen years when this suit was brought. Emma McGill is the widow of Dominick Dignan and guardian of the minors. The defendants Eliza and Lila S. Nelson are the widow and daughter, respectively, of John A. Nelson, deceased, and the firm of Pickett & Greeg were their tenants, all in possession of the property. The complaint alleges that the plaintiffs are the owners in common, in fee, and entitled to the possession, of the property, and that the defendants are in possession, and are unlawfully withholding the same from the plaintiffs. The answer denies these allegations and sets up three affirmative defenses, in substance as follows: That on August 28, 1880, John A. Nelson conveyed said land by warranty deed, to Dominick Dignan, but that the deed was, in fact, a mortgage to secure payment of $ 1,000, which, it is averred, was afterwards paid, and that the mortgage deed should have been discharged; second, that an action of ejectment, brought May 13, 1883, by the administrators of the Dignan estate against Eliza Nelson for possession of the property in dispute, was compromised, and that judgment should have been entered for the defendant, but that the same was not so entered; third, that the plaintiffs are barred by the statute of limitations.

The first and second defenses were not proven, and as to them the trial court found adversely to the defendants. Those defenses are therefore eliminated from the case, and will not receive further consideration.

The decisive question on this appeal, then, is, are the plaintiffs barred by the statute of limitations? The statute applicable here is found in 2 Comp. Laws 1888, sec. 3137, subdivision 3 of which, so far as is material to this decision, reads: "That in no case shall adverse possession be considered established, under the provisions of any section or sections of this Code, unless it shall be shown that the land has been occupied and claimed for the period of seven years continuously, and the party or persons, their predecessors and grantors, have paid all the taxes, territorial, county or municipal, which have been levied and assessed upon such land according to law."

It will be noticed that, under this provision, no adverse possession can be established, unless the land shall have been occupied and so claimed for a period of seven years continuously, and the taxes, levied and assessed thereon according to law, paid by the party claiming adversely, and, "in order to constitute an effective adverse possession, there must be an ouster of the real owner, followed by an actual, notorious, and continuous possession of the adverse claimant." 1 Am. and Eng. Ency. of Law (2 Ed.), p. 789. To acquire title by adverse possession, therefore, under our statute, the possession must not only be continuous for the time prescribed, but, under well-settled law, must be actual, open, and notorious, with an intention on the part of the claimant to claim the title as owner, and against the rights of the true owner; and in addition to all this, the adverse claimant must pay all the taxes which are lawful charges upon the land. Where, then, title to land is claimed by adverse possession, the burden of proving that all these requisites have been complied with rests upon him who asserts the claim. Hence in this case the burden was upon the defense to show a compliance with every material requisite of adverse possession under the statute. This the appellants contend the defendants failed to do.

It is insisted that they failed to show that they paid the taxes, occupied all the lots or land, that the true owner was ousted, and that their possession was hostile to him. The findings of fact upon these points, it is claimed, are indefinite and uncertain, and do not support the judgment. The findings, material here, read as follows:

"(8) That ever since the death of said Nelson, in 1880 the defendant Eliza Nelson and the defendant Lila S. Nelson, in person and by their tenants, have remained in open, notorious, and exclusive adverse possession of all of lots 9,...