Flora v. Gusman

• Citation: 279 P.2d 1067,76 Idaho 188
• Decision Date: 09 February 1955
• Docket Number: No. 8170,8170
• Parties: Dale D. FLORA, Plaintiff-Respondent, v. Harry J. GUSMAN, Frank N. Gusman, and W. W. Jones, as Executor of the Estate of Emma Gusman, Deceased, Defendants-Appellants.
• Court: United States State Supreme Court of Idaho

Page 1067

279 P.2d 1067

76 Idaho 188

Dale D. FLORA, Plaintiff-Respondent, v. Harry J. GUSMAN, Frank N. Gusman, and W. W. Jones, as Executor of the Estate of Emma Gusman, Deceased, Defendants-Appellants.

No. 8170.

Supreme Court of Idaho.

Feb. 9, 1955.

Garrity & Garrity, Nampa, for appellants.

Anderson, Kaufman & Kiser, Boise, Albaugh, Bloem, Barnard & Smith, Idaho Falls, for respondent.

PORTER, Justice.

By this action, plaintiff-respondent seeks a judgment decreeing that he is the owner of an undivided one-twelfth interest in certain real and personal property and decreeing the partition thereof. Such property consists of the property included in the claimed estate of Emma Gusman, deceased, and is now in the possession of appellants. The trial court made and entered findings of fact, conclusions of law and judgment favorable to respondent. This appeal is from such judgment.

There is no serious conflict in the evidence as to the foundation facts in this case. James E. Gusman, a resident of Owyhee County, died intestate in the year 1907. At the time of his death he was residing on his cattle ranch with his family. Such family consisted of his wife, Emma Gusman, their two sons, the defendants, Harry J. Gusman and Frank N. Gusman, and their daughter, Jennie Gusman. Frank N. Gusman, the youngest of such children, was then 27 years of age. The entire family assisted in the work on the ranch.

James E. Gusman was ill for some six months prior to his death. During such time his wife gradually took over the management of the cattle ranch. After the death of James E. Gusman, there was no change in the management and handling of the ranch. The estate of James E. Gusman was not probated. There was no division of the real or personal property. The cattle belonging to the estate and the additions thereto continued to be run on the ranch. The two sons, as a partnership, also ran cattle on the ranch under their own brand. They did not pay any rent or for any feed. Likewise, the sister, Jennie Gusman, ran her separate cattle on the ranch under her own brand and did not pay any rent or for any feed. The cattle were all run together. In addition to the home place there were two other houses on the ranch and at some undisclosed dates each of the sons moved into one of such houses.

There was no break in the continuity of the management of the ranch by Emma Gusman. During the ensuing years she continued to manage the ranch as a unit. She paid the taxes and handled the business affairs. When a sale of cattle was made, the proceeds were divided according to the brands of the cattle sold. All the children continued to work on the ranch. They received no wages for their work. The mother was a strong personality and kept the family working together as a closely knit ranch family.

According to the testimony of the defendants, Frank N. Gusman and Harry J. Gusman, there was nothing said whatever by the children or by the mother about a division of the property. The family lived in harmony. None of the children made a claim for a share of the property and the mother asserted no adverse claim to be the owner of the entire estate of James E. Gusman, deceased.

Under the law in force in the State of Idaho in 1907, one-half the estate of James E. Gusman descended to his widow, Emma Gusman, and the remaining one-half to the three children, each child inheriting a one-sixth interest in the estate.

In 1918 Jennie Gusman married William H. Flora, an employee on an adjoining ranch. In 1920 they moved into the home with Emma Gusman. William H. Flora was paid wages for his work on the ranch and he and his wife also ran cattle on the Gusman ranch.

In 1936 Jennie Flora died intestate and without issue. Under the law of descent and distribution in force at such time, her mother, Emma Gusman, inherited one-half of Jennie Flora's estate and the other one-half thereof descended to her husband, William H. Flora. Thus the undivided one-sixth interest of Jennie Flora in the James E. Gusman estate descended one-twelfth to Emma Gusman and one-twelfth to William H. Flora.

William H. Flora continued to reside with Emma Gusman, continued to work on the ranch and to draw wages therefor and continued to run cattle thereon under the same conditions until a short time before his death when he liquidated his cattle business. He died testate in 1949. Plaintiff-respondent was the residuary legatee under his will. No mention was made in his will of the interest in the James E. Gusman estate. The estate of William H. Flora was probated in 1949-50.

Respondent was the nephew of William H. Flora. He is also the step-son of Harry J. Gusman, being the son of the first wife of Harry J. Gusman. He commenced living on the Gusman ranch in about 1919, living there for 19 years, most of the time apparently, in the home with William H. Flora and wife.

Emma Gusman continued to manage and handle the Gusman ranch in the same manner and method as it had always been handled until the time of her death in 1950. Probate of her estate was started in 1950 and is still pending. By her will she left all her estate to her two sons except $50 each to five grandchildren and to Dale D. Flora.

In 1951 a petition for administration after lapse of two years was filed in the Probate Court of Owyhee County in the James E. Gusman estate by the appellant, Harry J. Gusman. By the decree in such proceedings it was determined that the heirs of said decedent were Mrs. J. E. Gusman, Harry J. Gusman, Frank N. Gusman, and Jennie Gusman Flora.

In 1952 a petition for determination of heirs and right of descent in the matter of the estate of Jennie Gusman Flora was filed by respondent in the Probate Court of Owyhee County. By decree in such proceedings it was determined that her claimed one-sixth interest in the real and personal property of James E. Gusman, deceased, descended equally to her mother, Emma Gusman, and her husband, William H. Flora.

At the outset of the trial of this cause it was stipulated and agreed that the plaintiff would be entitled to recover unless defendants were able to prove one or both of their affirmative defenses of adverse possession and laches. By their specifications of error, appellants urge in effect that the trial court erred in failing to find that the claim of respondent was barred either by adverse possession or by laches or by both.

It is well established that the burden of proving each and every element of adverse possession by clear and satisfactory evidence is upon the party relying upon title by adverse possession. Salvis v. Lawyer, 73 Idaho 469, 253 P.2d 589; Brown v. Brown, 18 Idaho 345, 110 P. 269. In Pleasants v. Henry, 36 Idaho 728, at pages 735-736, 213 P. 565, at page 567, we approved the following language:

"All the authorities agree that, in order to bar the true owner of land from recovering it from an occupant in adverse possession and claiming ownership through the operation of the statute of limitation, the possession must have been, for the whole period prescribed by the statute, actual, open, visible, notorious, continuous, and hostile to the true owner's title and to the world at large.'

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"Hence, an open and notorious occupation with hostile intent is a necessary constituent of an adverse possession. Neither a hostile intent without such occupation, nor such occupation without hostile intent, is sufficient."

Such language was again approved in Hogan v. Blakney, 73 Idaho 274, 251 P.2d 209 and in Salvis v. Lawyer, supra.

After the death of James E. Gusman, his estate not having been probated, his widow and the three children became tenants in common of his estate in the respective shares as provided by the laws of descent then in effect. In Terry v. Terry, 70 Idaho 161, at page 168, 213 P.2d 906, at pages 909-910, we indicated the things that must be done by a cotenant in order to start the running of the statute of limitations. We said:

'Appellants urge that the court erred in finding that the appellants had not acquired title by adverse possession. In Vaughan v. Hollingsworth, 35 Idaho 722, at page 731, 208 P. 838, 841, this court quoted with approval from Elder v. McClaskey, 6 Cir., 70 F. 529, 17 C.C.A. 251, as follows: 'Before adverse possession by one tenant in common against another can begin, the one in possession must, by acts of the most open and notorious character, clearly show to the world, and to all having occasion to observe the condition and occupancy of the property, that his possession is intended to exclude, and does exclude, the rights of his cotenant. It is not necessary for him to give actual notice of this ouster or disseising of his cotenant, to him. He must in the language of the authorities, 'bring it home' to his cotenant. But he may do this by conduct, the implication of which cannot escape the notice of the world about him, or of anyone, though not a resident in the neighborhood, who has an interest in the property, and exercises that degree of attention in respect to what is his that the...