Gildehaus v. Whiting

• Decision Date: 07 July 1888
• Parties: MATILDA GILDEHAUS et al. v. CATHARINE M. WHITING et al
• Court: Kansas Supreme Court

18 P. 916

39 Kan. 706

MATILDA GILDEHAUS et al. v. CATHARINE M. WHITING et al

Supreme Court of Kansas

July 7, 1888

Error from Shawnee Superior Court.

ON June 11, 1884, plaintiffs commenced their action in the superior court of Shawnee county, against the defendants, to recover the possession of lots 370 and 372 on Jackson street, in the city of Topeka, and also to recover $ 100 damages for the unlawful withholding of the possession of the same. On July 3, 1884, the defendants filed an answer containing a general denial. Trial had at the September term of the court for 1886, a jury being waived. The court made and filed the following findings of fact:

"1. The lots described in the plaintiffs' petition, to wit Lots numbered 370 and 372, Jackson street, city of Topeka, in this county, were a part of section 31, township 11, range 16, entered in the name of Isaiah Walker in February, 1859.

"2. Said section 31 was conveyed by said Isaiah Walker and Mary his wife to Cyrus K. Holliday, as trustee of the Topeka association, July 1, 1859, by special warranty deed, duly acknowledged and recorded.

"3. The city of Topeka was duly platted, and the plat thereof recorded in 1859; and said plat covered and included said section 31.

"4. One H. M. Moore conveyed to Amos D. Craigue lots 368, 370 and 372 on Jackson street, city of Topeka, by warranty deed dated November 4, 1859, which deed was duly acknowledged and recorded.

"5. Amos D. Craigue conveyed the lots mentioned in the next finding to William Grall by warranty deed dated June 12 1860, which deed was duly acknowledged and recorded.

"6. William Grall and Margaret his wife conveyed to H. Gildehaus & Co. of St. Louis, Missouri, said lots 370 and 272, on Jackson street, by their warranty deed dated April 6, 1868 which deed was duly acknowledged and recorded.

"7. Said H. Gildehaus & Co., in 1868, redeemed said lots 370 and 372 from sales from all prior taxes, and they paid taxes on said lots for the years 1868, 1869, 1870, 1871, 1872 1873, 1874, 1875, 1876, 1880, and 1881. It is not shown who paid the taxes on said lots for the years 1877, 1878 and 1879.

"8. The firm of H. Gildehaus & Co. was composed of Henry Gildehaus, Charles R. Dieckriede and Charles Wolfing. The plaintiffs are the heirs at law of said Henry Gildehaus; and said Henry Gildehaus duly succeeded to the interest of said firm of Henry Gildehaus & Co. in and to said lots 370 and 372.

"9. Said lots 370 and 372 remained wholly vacant and unoccupied and unimproved from the time they were laid out and platted in 1859, until sometime in the summer of 1882, when the defendant Catharine M. Whiting took possession of said lots, fenced them, and erected a dwelling house on them and an adjoining lot owned by her.

"10. The defendant Catharine M. Whiting is the widow, and the other two defendants are the only children of Charles C. Whiting, deceased. Said Charles C. Whiting resided in the city of Topeka from sometime in 1855 until January 1870, when he died, leaving the defendants his heirs-at-law. The defendants have resided in Topeka ever since the death of said Charles C. Whiting.

"11. One J. Findley Hill was one of the original shareholders of the Topeka association, and was owner of share 96, which was allotted to him by said association. Lots 370 and 372 on Jackson street belonged to said share 96, being duly drawn to that share in April, 1856.

"12. J. Finn. Hill conveyed lots 368, 370 and 372 on Jackson street, in Topeka, to Charles Whiting, by deed dated June 14, 1858. Said deed shows on its face that it was 'signed, sealed and delivered in the presence of H. M. Moore.' Said deed was not acknowledged, but it was recorded in volume C. of deeds of Shawnee county, on July 8, 1858.

"13. H. M. Moore by special warranty deed conveyed lots 368, 370 and 372, Jackson street, to T. Tucker, August 8, 1859, which deed was duly witnessed, acknowledged, and recorded.

"14. William Grall and Margaret his wife, by general warranty deed, conveyed said lots 370 and 372, on Jackson street, to Edward Thompson, November 13, 1860, which deed was duly acknowledged and recorded.

"15. William Grall and Margaret his wife, by general warranty deed, conveyed lots 368, 370 and 372, on Jackson street, to Meyer D. Haas, June 22, 1864, which deed was duly acknowledged and recorded.

"16. Since taking possession thereof as aforesaid, in 1882, the defendant Catharine M. Whiting has been in possession of said lots 370 and 372, and has since paid the taxes levied and assessed against the same.

"17. None of the plaintiffs have at any time resided in the state of Kansas.

"18. The defendant did not, nor did either of them, know until sometime in the spring or early summer of 1882, that said Charles C. Whiting, at any time during his life or at the time of his death, had any interest, claim or title in or to said lots 370 and 372, or in or to either of said lots."

And thereon the court made and filed the following conclusions of law:

"1. The plaintiffs have no such legal or equitable title to said lots 370 and 372 on Jackson street as will support this action, and are not entitled to recover possession of said lots.

"2. Upon the facts sustained by the evidence and found as aforesaid, the defendants are entitled to judgment for costs."

Subsequently, the court rendered judgment against the plaintiffs and in favor of the defendants for all their costs. The plaintiffs excepted, and bring the case here.

Judgment affirmed.

Jetmore & Son, for plaintiffs in error.

Vance & Campbell, for defendants in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This was a controversy in the court below over the title to lots 370 and 372, on Jackson street, in the city of Topeka. Amos D. Craigue bought these lots sometime in 1859 from E. C. K. Garvey, for an old watch, but obtained his deed for them from H. M. Moore, on November 4, 1859. This deed was duly acknowledged and recorded. It does not appear from any of the testimony contained in the record that either Garvey or Moore ever had any title or possession of these lots. Prior to the date that Moore executed the deed to Craigue, he had conveyed by a special warranty deed these lots to T. Tucker, on August 8, 1858. This deed was also duly acknowledged and recorded. On June 12, 1860, Craigue conveyed the lots to William Grall. On April 6, 1868, Grall and wife conveyed the lots to Henry Gildehaus & Co., of St. Louis. Henry Gildehaus succeeded to the interest and title to the lots of Henry Gildehaus & Co., and plaintiffs are his heirs-at-law.

These lots were formerly embraced in section 31, township 11, range 16, entered in the name of Isaiah Walker in February, 1859. July 1, 1859, Walker and wife conveyed this section to Cyrus K. Holliday, as trustee of the Topeka association. The plat of the city of Topeka was recorded in 1859, and that plat included said section 31. On June 14, 1859, J. Finn. Hill conveyed the lots to Charles Whiting. This deed recites that "it was signed, sealed and delivered in the presence of H. M. Moore." The deed was not acknowledged, but was recorded in volume C of deeds, in the office of the register of deeds of Shawnee county, on July 8, 1858. Hill was one of the original share-holders of the Topeka association, and the owner of share 96. These lots were drawn and allotted to that share in April, 1856. Whiting died in January, 1870, and the defendants are his only heirs. Gildehaus & Co., in 1868, redeemed the lots from prior taxes, and paid the taxes thereon from 1868 up to and including 1876, and also paid the taxes for 1880 and 1881. The testimony does not show who paid the taxes for the years 1877, 1878, and 1879. The lots remained vacant and unoccupied from the time they were laid out and platted in 1859, until the summer of 1882, when Catharine Whiting, one of the defendants, took possession of the lots, fenced, and otherwise made improvements thereon. Since said time she has paid all the taxes thereon.

There was evidence introduced to prove the ownership of the plaintiffs by showing that they and their grantors claimed the lots, and that they had paid taxes thereon for many years; but as was said in Gilmore v. Norton, 10 Kan.491: "This kind of evidence is only prima facie evidence, and must always give way to stronger evidence;" and if the defendants were mere trespassers or wrongdoers, this evidence, perhaps, would have been sufficient to have established the ownership of the plaintiffs to the lots. But the disclosures of the other testimony showed that plaintiffs' source of title commenced with Moore, who had neither title nor actual possession. There is nothing indicating that Moore or Garvey ever had a shadow of title to the lots. As the lots were wholly vacant and unoccupied, and as the recorded title under which the plaintiffs claim, conveyed or transferred no actual or substantial title or interest, they cannot, as against the special findings of the court, claim the property under the statute of limitations. To constitute an adverse possession sufficient to defeat the right of action of a party who has the legal title, the possession must be hostile in its inception, and so continue without interruption for the period prescribed by the statute of limitations. (Dewey v. McLain, 7 Kan. 126.)

In Roots v. Beck, (Ind.) 9 N.E. 698, it was held that --

"Any adverse possession the effect of which is to oust the true owner, and give to him a right of action, sets the statute of limitations in motion. When the bar of the statute becomes complete, however destitute of the color of title such occupancy may have been under, to the extent that it was actual, visible and continuous, a title by prescription arises in the adverse...