J.B. Streeter, Jr., Co. v. Fredrickson

• Citation: 91 N.W. 692,11 N.D. 300
• Decision Date: 12 June 1902
• Docket Number: 6731
• Court: United States State Supreme Court of North Dakota

91 N.W. 692

11 N.D. 300

J. B. STREETER, JR., COMPANY v. MARIT FREDRICKSON, et al

No. 6731

Supreme Court of North Dakota

June 12, 1902

Appeal from District Court, Nelson County; Fisk, J.

Action by the J. B. Streeter, Jr., Company against Marit Fredrickson and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

Affirmed.

C. N Frick and Cochrane & Corliss, for appellants.

Tracy R. Bangs, for respondent.

OPINION

YOUNG, J.

This is an action to quiet title and determine adverse claims to certain real estate situated in Nelson county. The title upon which the plaintiff relies was acquired through a series of conveyances, commencing with the patent from the United States government, which was issued July 10, 1883. It is conceded that the plaintiff's title and right of possession is perfect, unless it has been acquired by the defendant by adverse possession under the provisions of chapter 158, Laws 1899. The defendant Marit Fredrickson claims that the plaintiff's title has been forfeited, and that her claim of title, which is based upon a tax deed accompanied by adverse possession and payment of taxes thereunder, has become perfect and paramount. The facts were stipulated at the trial. The tax deed referred to was issued to C. M. Howlet on February 16, 1887, for the taxes of 1883. On May 11, 1887, Howlet conveyed to A. M. Tofthagen. On April 20, 1892, Tofthagen conveyed to the defendant Marit Fredrickson. It is stipulated that Tofthagen, the defendant's grantor, was in actual, open, adverse, and undisputed possession of the real estate in controversy from May 11, 1887, to April 20, 1892, and paid all taxes and assessments on said real estate during said period; further, that the defendant Marit Fredrickson continued such possession, and that the same was undisputed up to March 8, 1900, when this action was commenced; and that she paid all taxes and assessments charged against said land during her occupancy. The combined possession of the defendant and her grantor extended over 13 consecutive years. Neither the defendant nor her grantor, however, was in possession of the premises or paid taxes for the full statutory period of 10 years. The possession of Tofthagen covered about five years, and that of the defendant Fredrickson about eight years. The defendant Tofthagen has an unsatisfied mortgage on the premises, executed by the defendant Marit Fredrickson. It is conceded that the tax deed referred to is void, and it is relied upon by the defendants merely as color of title, and in connection with adverse possession and payment of taxes. The trial court held, as matter of law, that the plaintiff is the owner in fee simple of the land in question, and that neither of the defendants has any interest therein. The defendants have appealed from the judgment quieting title in the plaintiff, and assign error upon the court's conclusion of law.

The statute upon which the defendants rely to defeat plaintiff's title and establish title in Marit Fredrickson (chapter 158, Laws 1899; section 3491a, Rev. Codes 1899) reads as follows: "All titles to real property vested in any person or persons who have been or hereafter may be in the actual, open, adverse and undisputed possession of the land under such title for a period of ten years and shall have paid all taxes and assessments legally levied thereon, shall be and the same are declared good and valid in law, any law to the contrary notwithstanding." Plaintiff's counsel contend that the facts of this case do not bring it within the provisions of the statute just quoted. In this view we fully concur. This statute was before this court in Power v. Kitching, 10 N.D. 254, 86 N.W. 737. We then enumerated, in a general way, certain conditions which must concur to render the statute available to one who claims title under its provisions. "Under this statute title is not acquired until each of the three prescribed conditions are fully met: First, the claimant must be vested with some sort of title; second, he must occupy the land, under claim of title thereto, openly, adversely, and exclusively for a period of ten years; finally, the claimant must pay all taxes assessed against the land for such period." In the case at bar the adverse possession of the claimant does not fill out the statutory period of 10 years. Neither has she paid taxes assessed against the premises for that period. As already stated, her possession and payment of taxes covered but eight years.

Counsel for defendants contend, however, that the doctrine of tacking possessions is applicable, and that for the purpose of making out a full compliance with the statute the defendant may resort not only to the prior adverse possession of her grantor, but that she may also have the benefit of his payment of taxes. In our opinion, the doctrine of tacking possessions is not permissible under this statute. This question was not involved in Power v Kitching, supra. In that case the claimant had been in possession and had paid taxes for the full statutory period of 10 years. We are agreed, however, that the general conclusion announced in that case that a claimant under this statute must have been in adverse possession for 10 years, and paid taxes for that period was a proper interpretation of the requirements of the statute, and should be adhered to. One who seeks to establish title to real property in himself and to defeat the true title of another by the aid of a statute of limitation, must bring himself clearly within its terms. Courts are without authority to expand such statutes to include cases not covered thereby. The following rule of construction, voiced by the supreme court of Wisconsin in Sydnor v. Palmer, 29 Wis. 226, meets our approval: "Statutes of this nature, which operate in restraint of the true title, or make a certain kind of possession effectual for that purpose, if they are not to be construed strictly, yet ought not to be construed so liberally as to include within them any case not fairly within their words. The courts have no power of addition or amendment by which they can extend the operation of the statute, or adapt it to cases not provided for. The party whose title is to be destroyed or remedy barred may properly stand on the letter of the statute, and insist on a strict compliance with its conditions." See, also, Wilson v. Henry, 35 Wis. 241. By the language employed in the statute under consideration,--and it is not ambiguous,--the legislature of this state extended the benefit of its provisions not to all persons indiscriminately, but to certain persons; that is, to persons who have been or may hereafter be in the actual, open, and undisputed possession of land for 10 years, and who shall have paid all taxes and assessments legally levied thereon. It is the titles of persons complying with these conditions which are declared good and valid in law, and the titles of no other persons. There is no language in the statute which can be construed as extending the benefit of its provisions to persons or in aid of titles other than those thus described. It will be conceded that the doctrine of tacking possessions, which counsel for defendants invoke,--and it is an ancient doctrine,--has been applied by the courts to almost all statutes of limitations for the recovery of real property. It was recognized by the common-law courts of England as permissible under 21 Jac. I, c. 16, 1623, entitled "An act for limitation of actions, and for avoiding of suits in law." "This statute has been the model of all the legislation on the limitation of actions for the recovery of land in this country. It was generally adopted here during the colonial period, and, though now superseded by more modern legislation, the rules of construction laid down by the courts with regard to it are held to govern the statutes which have been modeled upon it and taken its place." Sedg. & W. Tr. Title Land, § 724. "And wherever it has been superseded by other acts of limitation which do not essentially vary it, these are generally construed as the statute of James, and the other acts founded upon it have been construed." Busw. Lim. § 10; Walden v. Gratz, 1...