Keller v. Harrison
| Decision Date | 13 December 1910 |
| Citation | 128 N.W. 851,151 Iowa 320 |
| Parties | A. H. KELLER and M. K. WHITNEY v. T. W. HARRISON and GEORGE TELFORD, Appellants |
| Court | Iowa Supreme Court |
Appeal from Palo Alto District Court.--HON. D. F. COYLE, Judge.
ACTION in ejectment for the possession of a strip of land and damages for its wrongful detention. Trial to jury resulted in a judgment as prayed. The defendants appeal. Affirmed.
Affirmed.
Dwight G. McCarty and T. W. Harrison, for appellants.
E. A and W. H. Morling, for appellees.
OPINION
The facts are recited with sufficient fullness in the opinion rendered on the former appeal, 139 Iowa 383, and though witnesses who had not testified on the first trial were called, the additional evidence was not such as to exact any change from the conclusions therein announced. Upon remand, defendants filed an amendment to the answer pleading that the action was barred by the statute of limitations in that more than ten years had elapsed since it might have been maintained. The issue so pleaded was not submitted to the jury and of this complaint is made.
I. The survey by defendant Harrison, as county surveyor, was made in 1873, and he has been in possession of the twenty acres in dispute since that time. As such possession was under claim to it as part of the N.W. 1/4 of section 28, it was held on the former appeal that if this strip was not a portion thereof, but was a part of the N.E. 1/4 of that section, his possession could not have been adverse. Such has been the doctrine of this court since Grube v. Wells, 34 Iowa 148, which was followed in Fisher v. Muecke, 82 Iowa 547, 48 N.W. 936; Goldsborough v. Pidduck, 87 Iowa 599, 54 N.W. 431; Skinner v. Crawford, 54 Iowa 119, 6 N.W. 144; Wacha v. Brown, 78 Iowa 432, 43 N.W. 269; Heinz v. Cramer, 84 Iowa 497, 51 N.W. 173, and Jordan v. Ferree, 101 Iowa 440, 70 N.W. 611.
These decisions proceed on the theory that the possession must be adverse in order to start the running of the statute of limitations, and this was recognized in Grube v. Wells, citing authorities holding that before a party may avail himself of that statute as a defense in an action of right, there must have been an entry and an ouster of the true owner for that until disseisin any possession of another is presumed to be subservient to his title, and, regardless of the time of its continuance, will not operate to bar recovery by the title holder. Jones v. Hockman, 12 Iowa 101; Clagett v. Conlee, 16 Iowa 487; Wright v. Keithler, 7 Iowa 92. Neither party has noticed these cases in the briefs, and as they have stood unchallenged for nearly fifty years, we are not inclined to reconsider them. See note to Jasperson v. Scharnikow, 150 F. 571 (15 L. R. A. (N. S.) 1178). There was no error in not submitting this issue to the jury.
II. Appellant argues that inasmuch as the field notes and plat made by the county surveyor were required to be recorded and his surveys are declared by statute "presumptively correct" (section 534, Code), and, as between specified persons, a certified copy of the record is made "presumptive evidence of the survey and of the facts herein required to be set forth" (section 538, Code), the recording of defendant's survey should be held to have carried notice to all the world of his claim to the strip of land in dispute, and the statute be held to have begun to run then, or, at least, when by the exercise of reasonable diligence the error, if any, in the survey might have been discovered. But such a record is not of any link in the chain of title nor does it give information as to who may be in possession. It is merely evidence of the location of the lines and corners, though not conclusive, of which no one is charged with constructive notice. The object in recording is to preserve the evidence which has no bearing on ownership, possession, or title, save as these may tend to show the true location of the boundaries between the several tracts of land. The point is not well taken.
Nor is there anything in the suggestion that the action was barred because of laches. The discrepancy between the line as located by defendant's survey and the true line, if any, was not discovered until shortly before this action was begun, so that abandonment of all claim to the strip in dispute could not well be presumed. Moreover, the doctrine of stale demand is a purely equitable one, arising only when from lapse of time and the laches of plaintiff it would be inequitable to allow a party to enforce his legal rights, and as no equitable defense was pleaded, it was not available to defendant. McFarlane v. Grober, 70 Ark. 371 (69 S.W. 56, 91 Am. St. Rep. 84); Wilson v. Nichols, 72 Conn. 173 (43 A. 1052); Ellis v. Smith, 112 Ga. 480 (37 S.E. 739); Bank v. Baker, 176 Mass. 294 (57 N.E. 603); Wood on Limitations, section 60.
III. The plea in abatement is without support in the evidence. A mortgage on the land was foreclosed, the land sold thereunder, and a certificate of sale issued. Subsequently, it was assigned to the plaintiff Keller. No sheriff's deed was issued and therefore the title of plaintiffs never was divested. Some reliance appears to have been placed on a plea of estoppel, but that was disposed of by the answer of the jury to a special interrogatory.
IV. The county surveyor, Leroy Grout, since deceased, prepared diagrams illustrating the survey as made by the defendant in 1873 and recorded. His testimony that these were accurate was uncontradicted, and as the lines of defendant's survey as appeared on the plat accompanying it did not indicate any discrepancies or irregularities in the different subdivisions, these diagrams aided the court and jury in more clearly understanding and applying the evidence adduced. Moreover, Grout testified as an expert, and by these diagrams he was able more clearly than by word of mouth to explain the survey as effected by the defendant. There was no error in receiving them in evidence. East Tenn., V. & G. Ry. v. Watson, 90 Ala. 41 (7 So. 813); Riddle v. Germantown, 117 N.C. 387 (23 S.E. 332); Blair v. Pelham, 118 Mass. 420; Brantly v. Huff, 62 Ga. 532.
V. Objection was sustained which was interposed to the testimony of a witness that he had bought a quarter section in the county as one hundred and sixty acres, and upon survey it measured one hundred and ninety acres. The ruling was right. The testimony had no bearing on the issues being tried.
VI. At the conclusion of the evidence, the jury were allowed to view the premises, being conducted by the sheriff, accompanied by the judge. This was by consent, the court saying to the jury before departing from the courtroom:
Gentlemen of the jury, I am about to excuse you until one o'clock this afternoon, at which time you will appear here to be conducted in a body to view the premises in dispute between the parties to this action. The statute provides that you shall be conducted by an officer to the place to be viewed, which shall be shown to you by some person appointed by the court for that purpose. The parties in this case have agreed that the court himself may go with you and act as the person to show you the premises. The statute further provides that when you are thus absent viewing the premises that no one save the person selected to show the premises to you shall speak to you on any subject connected with the trial. It will therefore be your duty while viewing the premises to refrain from conversing with anybody in relation to the matters in trial, and to reach your own conclusions from the view of the premises that you make.
This was not excepted to, and its only bearing is with respect to the court's omission to refer to the subject in the instructions subsequently given. After the verdict had been returned, it was made to appear, in support of the motion for new trial, that two of the jurors took measuring lines with them, and upon reaching the premises tied these together and first measured on the north section line from the end of the fence defendants had constructed on what they claimed was the boundary to the stake set by Grout, as marking the true quarter corner, to see, as they explained, if it was the real post, from which they might take their views, and they also measured from what they supposed was the northeast corner of the section over to the end of Harrison's fence mentioned, and from thereon west to the end of a division fence in the section north and opposite the line as claimed by plaintiffs, and then on to what they supposed to be the northwest corner of the section. Two other jurors kept tally and they made out that the north sectional line overran a mile a little. The jurors testified that the purpose of these measurements was to find the locations referred to in the testimony and that they were not discussed save in making them. The jurors also had different photographs of the premises which had been introduced in evidence with them and undertook to ascertain the points from which taken, so as to understand their applicability. Though taking these photographs with them may not have been regular, the jury, to apply the evidence, might have sought to ascertain the places from which taken had these not been with them, and while their conduct in this respect is not to be approved, it must have been without prejudice.
Nor are we inclined to regard the making of the measurements as prejudicial. There was no dispute as to the location of defendant's fence or the stake as set by Grout, or of the division fence in the section to the north, or as to the distance between the section corners, and the measurements developed no differences material to the issues being tried. We do not say such conduct is to be approved. On the...
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