Hahn v. Keith

• Decision Date: 06 November 1919
• Citation: 170 Wis. 524,174 N.W. 551
• Parties: HAHN v. KEITH ET AL.
• Court: Wisconsin Supreme Court

170 Wis. 524

174 N.W. 551

HAHN

v.KEITH ET AL.^a1

Supreme Court of Wisconsin.

Nov. 6, 1919.

Appeal from Circuit Court, Sauk County; James O'Neill, Judge.

Action by Joseph Keith, for whom W. H. Hahn, administrator of the estate of Joseph Keith, was later substituted, against Wesley Keith and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Action begun June 4, 1917, to quiet title to 80 acres of land originally owned by William Keith, the plaintiff's father. The defendants claimed title to the land as heirs and cotenants of plaintiff and asked for partition and an accounting. Joseph Keith, the original plaintiff, has died since the appeal was taken, and his administrator W. H. Hahn, has been substituted in his place; but for convenience Joseph Keith will be called the plaintiff. William Keith, the father of plaintiff and the common ancestor of the parties, died about 1862, leaving him surviving: (1) A daughter Rachel Jessop, now deceased, who left two daughters, Fanny Almy and Nellie Jessop; (2) Joseph Keith, the plaintiff; (3) Margaret Coyne, now deceased, who left three daughters, Catherine Burns, Margaret Kehrer, and Maria Logan, the latter of whom died in 1906 leaving a son George Logan 16 years of age at the time of the trial; (4) Elizabeth Jessop; (5) Nancy, deceased without issue; (6) Iona Winnerston; and (7) George Wesley Keith. Sarah Keith, his widow, never remarried and died in 1892. She continued to live on the farm till November, 1883, when she moved therefrom never to return to it as her residence.

Plaintiff claimed title to the land through a deed from his mother executed in 1883 and adverse possession since the death of his father. The substance of the testimony relating to adverse possession is as follows: After the death of the father, the mother of plaintiff and the children, of whom plaintiff was the oldest son, continued to live on the farm as a family. As soon as the other children reached a suitable age, they went out to work, returning to the farm occasionally for longer or shorter periods as convenient. After they left the farm, they contributed very little to the support of their mother. Joseph was married in 1871 and had eight children. His wife died about 1893, and he never remarried. In 1883 he received a warranty deed from his mother purporting to convey the whole 80 acres to him. The deed was recorded in 1901. He gave his mother a mortgage when the deed was delivered which was recorded January 4 1884. In 1896 he executed and recorded a mortgage to one Lizzie Fish, and another one in 1901. Plaintiff lived continuously upon the farm after the death of his father up to the time of the trial, except for about two years prior to November 3, 1883, when he lived on an adjoining farm, and from November, 1883, he had exclusive possession of the farm till the time of the trial. From 1875 to 1882 the land was assessed to plaintiff and he paid the taxes, and the same is true since 1884. So far as use and occupancy are concerned, the plaintiff treated the farm as his own. He made valuable improvements thereon and never was asked to and never did account to any one for the proceeds of the farm. He supposed his mother and the other children had an interest in the farm when the father died, but seemed to have no clear conception of what each one's interest was. The brothers and sisters still living testified to the effect that they were satisfied to let plaintiff have the use of the farm while he lived, and supposed that upon his death they would receive their share. This was the chief reason why they never asked for an accounting or asserted title till this action was brought. The grandchildren naturally did not know much about the matter.

The court found that plaintiff had title by adverse possession and entered judgment quieting title in him. The defendants appealed.

Eschweiler, Kerwin, and Rosenberry, JJ., dissenting.F. R. Bentley, of Baraboo, and Henry J. Bohn, of Reedsburg, for appellants.

Stone & Quimby, of Reedsburg, for respondent.

VINJE, J. (after stating the facts as above).

[1][2][3] Unquestionably plaintiff's initial possession was permissive and not adverse, but permissive possession may ripen into an adverse one by declarations or acts or both. 2 C. J. 124, §§ 210, 133, and 228; Bartlett v. Secor, 56 Wis. 520, 14 N. W. 714;Meyer v. Hope, 101 Wis. 123, 77 N. W. 720. And continuous and exclusive possession of land for over 20 years raises the presumption that possession is adverse and throws the burden of proof upon the true owner to show that it was permissive. Bartlett v. Secor, 56 Wis. 520, 14 N. W. 714;Meyer v. Hope, 101 Wis. 123, 77 N. W. 720. There may also be an ouster of cotenants by adverse possession. 1 R. C. L. 742.

[4][5][6][7] In this case the evidence is practically undisputed, and the question is whether the findings of the trial court that plaintiff had gained title by adverse possession is so clearly wrong as not to be a permissible inference from all the evidence. If it is a permissible inference, we ought not to disturb it. Meyer v. Hope, 101 Wis. 123, 77 N. W. 720. It is argued by defendants that in making its findings of fact the trial court overlooked the rule that as cotenants actual notice of adverse possession must be brought home to them and that the evidence fails to establish such notice. It is true that no actual notice by declaration is shown, but actual notice may be given by acts as well as by declaration. And so also the best evidence of ouster is the exclusive, actual possession of the one claiming to hold adversely. 1 R. C. L. 702. Here plaintiff was in possession of the land for nearly 50 years rendering an account therefor to no one. He was in the exclusive, notorious possession of it for some 30 years previous to the commencement of the action to the knowledge of the defendants, treating it in every respect as his own. He made valuable improvements upon it, paid the taxes, and used the proceeds of the crops as his own. Since their father or grandfather died, they never questioned the right of plaintiff to so occupy and use the farm, and never asked for any accounting till this action was brought. From such admitted facts it seems to us the trial court was justified in inferring that plaintiff's possession was adverse to the knowledge of the defendants, and that their explanation of the reason why they permitted him to occupy the farm did not satisfactorily rebut the presumption arising from his long-continued open, notorious, and exclusive possession that it was adverse. This subject is quite fully treated in Meyer v. Hope, 101 Wis. 123, 77 N. W. 720, and in the Wisconsin cases therein cited, and will not therefore be rediscussed here. Suffice it to say that we cannot set aside the trial court's finding of fact as to adverse possession.

[8][9] Since the statute of limitations began to run against the mother of George Logan, a minor defendant, it also began to run against him. Swearingen v. Robertson, 39 Wis. 462. But, of course, such a rule does not apply to redemption by minors from tax sales because section 1166, Stats. 1917, gives them one year after reaching majority within which to redeem. Karr v. Washburn, 56 Wis. 303, 14 N. W. 189;Corry v. Shea, 144 Wis. 135, 137, 128 N. W. 892, Ann. Cas. 1912A, 1154.

Judgment affirmed.

ESCHWEILER, J. (dissenting).

Although the court below based its conclusion that plaintiff was owner apparently upon two grounds--first, more than 20 years' adverse possession, and, second, by entry under the deed from his mother of November, 1883, recorded August 17, 1901, and more than 10 years' possession thereunder--yet the majority opinion mentions only the first ground as the basis of its judgment. The opinion specifies no definite time when the plaintiff flung to the breeze his banner of exclusive ownership (Ill. Steel Co. v. Jecka, 123 Wis. 419, 430, 101 N. W. 399), so as to transform what was up until then concededly permissive possession into adverse possession. There was no change in the manner of his possession of this farm, so far as these cotenants were concerned, during the entire period from his father's death in 1862 until the commencement of this action; he farmed it, improved it, and took its...