Grant v. Paddock

• Decision Date: 18 January 1897
• Citation: 47 P. 712,30 Or. 312
• Parties: GRANT v. PADDOCK.
• Court: Oregon Supreme Court

47 P. 712

30 Or. 312

GRANT v. PADDOCK.

Supreme Court of Oregon

January 18, 1897

Appeal from circuit court, Multnomah county; H. Hurley, Judge.

Action by J.M. Grant against Benjamin O. Paddock. From a judgment for plaintiff, defendant appeals. Modified.

This is an action by J.M. Grant, as tenant in common, to recover of his co-tenant the undivided one-third of the north half of the donation land claim of John A. and Nancy Williams, in Multnomah county. The defendant, after denying the material allegations of the complaint, alleges--First, that one S.E Paddock, under whom he holds possession, is the owner in fee of the whole of the north half of said claim; and, second that neither the plaintiff, nor his ancestor, predecessor, or grantor, was seised or possessed of the demanded premises within 10 years before the commencement of this action during which time the defendant and those under whom he claims have been in the open, notorious, peaceable, and quiet possession thereof, and have held the same adversely as against every one. The reply put in issue the allegations of new matter contained in the answer, and, a jury being waived a trial was had by the court, which found, in substance, that on December 5, 1860, Nancy Williams died intestate, in Multnomah county, leaving, as her heirs at law, the issue of her marriage with the said John A. Williams, her surviving husband, to wit, Sarah J. Grant, Missouri Dodd, Judith A. Bozorth, Josephine Grant, Milton B. Williams, Wiley C. Williams, and Sanford R. Williams, and the following named grandchildren, John Henry Childs and George Shelly; that Milton B. Williams died in 1861 and Wiley C. Williams in 1863, each being then under age, unmarried, and without issue, and that said John Henry Childs died after April 30, 1884; that at the time of her death the said Nancy Williams was seised in fee of the north half of said donation land claim; that on June 10, 1863, John A. Williams, having a life estate only in said premises, as tenant by the curtesy, executed to one Henry Holtgreve a general warranty deed, purporting and intending thereby to convey in fee the whole of said north half; that on May 1, 1865, Holtgreve and his wife executed a deed for said premises to one John Switzler, and he to J.C. Files in 1876, who, with his wife, on March 14th of that year, executed to the defendant's lessor a deed purporting to convey the same to him, his heirs and assigns; that each of said grantees, on obtaining his deed, entered into possession of this land, and continued to occupy, use, and cultivate the same as a farm, until he executed a deed thereto, and surrendered the possession thereof to his grantee; that their possession had been open, continuous, adverse, and hostile to all other persons, and under a claim of title to the whole of said real property; that, from March 1, 1876, to the commencement of this action, defendant's father, Sylvester E. Paddock, by himself and his tenants, has continued to occupy and use the said premises, and was then in the possession thereof; that John A. Williams died on the 30th day of April, 1884, between 12 o'clock midnight and 2 o'clock of that morning; that the summons in this action was not delivered to the sheriff of Multnomah county for service until April 30, 1894, after 8 o'clock a.m.; that Judith A. Bozorth died intestate November 29, 1892, leaving three sons, named J.O., M.B., and Scott Bozorth; that on April 18, 1894, said Sarah J. Grant and Josephine Grant executed to the plaintiff a deed purporting to convey an undivided two-sixths of said premises. And the court also found, as conclusions of law, that, upon the death of Nancy Williams, the real property of which she died seised descended to her heirs in equal shares; that the shares of Milton B. and Wiley C. Williams descended in equal shares to the children of Nancy Williams; that the share of John Henry Childs therein descended, upon his death, subsequent to the death of John A. Williams, to the other remaining heirs of Nancy Williams; that the statute of limitations did not begin to run against the heirs of Nancy Williams, as to the north half of said claim, until the death of John A. Williams; that the plaintiff's right of action was not barred; that plaintiff was the owner in fee and entitled to the possession of the undivided one-third of the north half of said claim; and that the defendant wrongfully withholds the possession thereof, to the plaintiff's damage in the sum of one dollar,--and upon these findings gave judgment for the plaintiff, from which the defendant appeals.

S.R. Harrington and W.W. Thayer, for appellant.

A.H. Tanner and H.J. Bigger, for respondent.

MOORE C.J. (after stating the facts).

It is contended by counsel for the defendant that, an issue having been joined upon the allegation that plaintiff was the owner in fee of an estate in the demanded premises, as tenant in common with the defendant, upon which the court failed to find an ouster of the plaintiff, or a refusal of the defendant to admit him into possession, it follows that there is no foundation to support the judgment, for which reason it should be reversed. While proof of a denial of the plaintiff's right of possession, or some act equivalent thereto, is essential to the maintenance of an action of ejectment by a tenant in common of real property against a co-tenant (Hill's Ann.Laws Or. § 327), yet the condition of the pleadings may be such as to concede this fact, and thus dispense with such proof (Freem. Co-ten. [ 2d Ed.] § 292). In Miller v. Myers, 46 Cal. 535, the court, in discussing this proposition, say: "It is well settled that a refusal, after a proper demand by a tenant in common in possession to admit his co-tenant into the possession, is itself an ouster, and dispenses with the necessity of further proof on that point. It is equally clear that, in an action by a tenant in common against his co-tenant to be admitted into the possession, a denial in the answer of the plaintiff's title and right of entry is equivalent to an ouster." The answer herein, having alleged adverse possession for more than 10 years as a defense to the action, was clearly a denial of the plaintiff's right, and the court having found an adverse holding for less than 10 years upon the issue joined upon said allegation, necessarily found an ouster of plaintiff. Harrison v. Taylor, 33 Mo. 211; Noble v. McFarland, 51 Ill. 226; Clason v. Rankin, 1 Duer, 337; Peterson v. Laik, 24 Mo. 541; Spect v. Gregg, 51 Cal. 198.

2. The court having found that John A. Williams died, April 30 1884, between the hours of 12 and 2 o'clock in the morning, and that this action was not commenced until after 8 o'clock in the morning of the 30th of April, 1894, counsel for the defendant contend that their client, and those under whom he claims, have been in the adverse possession of the premises more than 10 years, and, as the statute declares that no action shall be maintained for the recovery of real property, or for the possession thereof, unless it appears that the plaintiff, his ancestor, predecessor, or grantor, was seised or possessed of the premises in question within 10 years before the commencement of such action (Hill's Ann.Laws Or. § 4), the conclusion of law that the plaintiff's right of action is not barred by the statute of limitation is not deducible from, but is contradicted by, the findings of fact; that the prohibitory statute above cited cannot be modified by the general rule, adopted by the courts, to the effect that the time within which an act is to be done shall be computed by excluding the first day and including the last; and that the provision contained in section 519, Hill's Ann.Laws Or., applies only to cases in which the time is...