Folley v. Thomas
| Decision Date | 09 December 1910 |
| Docket Number | No. 6,806.,6,806. |
| Parties | FOLLEY et al. v. THOMAS. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Starke County; A. L. Courtright, Special Judge.
Action by Benjamin F. Thomas against William V. Folley and others. From a judgment for plaintiff, defendants appeal. Affirmed.
Jas. A. Pritchard, Peters & Peters, Chas. C. Kelley, and Henry M. Dowling, for appellants. Otis E. Gulley, for appellee.
In the court below the appellee comenced an action which he prosecuted to judgment against the appellants quieting his title to certain real estate in Starke county, Ind. The complaint was in one paragraph, answered by a general denial. The appellants' cross-complaint in one paragraph was answered by the appellee in five paragraphs, to all of which except the first, which was a general denial, a reply in denial was filed.
The errors relied on for a reversal of that judgment are based upon the overruling of appellants' demurrer to appellee's amended fifth paragraph of answer to appellants' cross-complaint, and the overruling of appellants' motion for a new trial.
In the cross-complaint it is alleged that Eliza E. Folley, a person of unsound mind, and in this action represented by a guardian, and Elmer E. Folley, are the sole heirs of William V. Folley, deceased, who derived title to the real estate in controversy by a deed from one Parr and wife, February 15. 1877, which deed was recorded April 12, 1877, in the office of the recorder of Starke county; that said Eliza E. and Elmer E. are the absolute owners of said real estate, and that the interest therein claimed by the appellee is inferior and junior to their title, and they ask to have their title quieted.
In substance said fifth paragraph of answer shows that on July 20, 1878, the sheriff of Starke county duly sold said real estate to the appellee for $355.42; that said sale was made upon a decree foreclosing a mortgage executed by Milton R. Bailey to the appellee; that on April 5, 1880, the sheriff executed to the appellee a sheriff's deed for said real estate, which deed was duly recorded on the day of its execution; that appellee on April 5, 1880, believing the said sheriff's deed vested in him the absolute fee-simple title to said real estate, thereupon in good faith entered upon said land and for more than 20 years continuously remained in open, public, notorious, adverse, peaceful, and exclusive possession of the same, claiming to be the sole and absolute owner thereof, and exercising sole authority and dominion over the same, and during said period of time performed acts of ownership following: (1) Conveyed to the National Transit Company by deed dated June 15, 1888, the right to lay a pipe line and operate the same across the land, which deed was recorded on the same day in deed record No. 31, in the office of the recorder of said county; (2) paying sundry drainage assessments against the land as they accrued between January 5, 1899, and May 21, 1903, aggregating $431.60; (3) fencing said real estate on May 28, 1900, and August 8, 1903, at a cost to him paid of $131.82; (4) renting said real estate for pasturing purposes and cutting wild grass since May 28, 1900, and collecting rents therefor and using the same; (5) paying all taxes from April 5, 1880, aggregating $236.59; (6) procuringdecree at October term of the Starke circuit court for the cancellation of a mortgage executed by William V. Folley to John C. Parr, in a suit brought by the appellee against William V. Folley and wife and John C. Parr and wife; (7) visiting the land between April 5, 1880, and the commencement of this suit; looking after the land and guarding timber thereon by his agents, who publicly announced their authority from him so to do. That said possession and dominion exercised by the appellee since April 5, 1880, was the only possession practicable to exercise over said land; that said land was and is not now capable of any other possession or of being put to any other uses than as aforesaid, and is what is known as Kankakee marsh land, and before said drainage proceedings were had, was mostly under water, and unfit for cultivation as farming land or human habitation; that since said drainage proceedings it has been practicable to use it for pasture purposes and cutting grass to make wild hay, but remains unfit for general farm use or human habitation. That appellee never knew William V. Folley, deceased, nor never heard or knew of said Folley nor any of the cross-complaints until about November, 1903. That since April 5, 1880, and for several years prior thereto, said William V. Foley, who died on or about the - day of - 190-, resided in Indianapolis, Ind.; that during all of said time appellee lived at Danville, Ind., 20 miles from Indianapolis, and, notwithstanding easy and convenient railroad, mail, and telegraph communications between said places, it never came to the knowledge of the appellee that William V. Folley claimed any interest whatever in the land, nor that said Folley ever disputed plaintiff's claim to possession or absolute ownership in fee simple thereto.
The only objection urged against this answer is that, it does not show that appellee had color of title to the land, nor that his occupancy was actual, visible, and continuous for more than 20 years; that constructive possession without color of title is insufficient as a basis of acquiring title.
Appellants have furnished us with an ingenuous argument tending to show that the sheriff's deed to the appellee herein furnishes no basis for a claim of color of title. It must be kept in mind that appellee's claim of title is not based alone on the sheriff's deed. The facts set forth in the answer are to be taken as true, and if we are not mistaken, appellants have failed to correctly interpret it. They assume that the answer shows only constructive possession of the land by appellee, and then proceed to argue that constructive possession without color of title is insufficient to uphold title or ownership, although such possession may have continued for the full term of 20 years. The decided cases are well agreed that possession alone will not disseise the rightful owner, or vest title in the possessor. Such is the holding of Ronan v. Meyer, 84 Ind. 390;Henry, Adm'r, v. Stevens, 108 Ind. 281, 9 N. E. 356;Cashman v. Brownlee, 128 Ind. 266, 27 N. E. 560. But as we read the answer, an entirely different case is here presented. When drawing this answer the pleader evidently had before him the case of Worthley v. Burbanks, 146 Ind. 534, 45 N. E. 779. For in the case at bar, as in that case, the five indispensable elements to show title by adverse possession appear. All of these elements are directly averred in the answer in question, except it may be said that actual possession is not averred in so many words, nor in a strict and limited sense was occupancy for 20 years shown...
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