Keyser v. Brown
| Citation | 138 N.E. 514,80 Ind.App. 504 |
| Decision Date | 13 March 1921 |
| Docket Number | 11,350 |
| Parties | KEYSER v. BROWN ET AL |
| Court | Court of Appeals of Indiana |
Rehearing denied June 26, 1923. Transfer denied November 20 1923.
From Hamilton Circuit Court; Fred E. Hines, Judge.
Action by Henry T. Keyser against Horace G. Brown and others. From a judgment in favor of defendants, the plaintiff appeals.
Affirmed.
Russell T. McFall, for appellant.
Frederick E. Matson, Ralph K. Kane, James A. Ross, Robert D. McCord and Adolph Schreiber, for appellees.
This is an action on the part of appellant against appellees to quiet his title to an undivided one-half of certain real estate, to have partition thereof, and for an accounting; and on the part of appellee Horace G. Brown, by a cross-complaint, to quiet his title to all of said real estate, and in the event such a decree is denied him, that he have a lien adjudged against the same in his favor. There are also cross-complaints by other appellees, setting up their respective interests, and asking that they be protected. Issues were duly joined upon the complaint and cross-complaints, and on the trial the court, on request, made a special finding of facts and stated its conclusions of law thereon. A judgment in favor of appellees followed, from which appellant prosecutes this appeal.
The only error assigned, on which appellant has stated any proposition or point, is based on the action of the court in overruling his motion for a new trial. The specific contention being, that the finding of the court to the effect, that appellee Horace G. Brown and his father, have been, successively, in actual, open, notorious, uninterrupted, exclusive and adverse possession of the real estate in suit, continuously, since 1886, and that said appellee alone had been in such possession, continuously, for a period of more than twenty years, is not sustained by the evidence. As bearing upon this contention we note that there is substantial evidence tending to show, that one Samuel Keyser departed this life in 1839, seized of the real estate in suit, which is located in Hamilton county, Indiana; that on and after the death of said Keyser the title to said real estate, by the laws of descent, devises, and deeds of conveyance, passed to appellant and one James K. Boyd, as tenants in common, each being the owner of an undivided one-half thereof; that on August 17, 1886, said Boyd and his wife executed a warranty deed for all of said real estate to one Daniel R. Brown, the father of appellee Horace G. Brown; that said Daniel R. Brown on October 19, 1886, caused his said deed to be duly recorded in the office of the recorder of Hamilton county, Indiana; that immediately, or soon after obtaining a deed for said real estate, the said Daniel R. Brown entered into the possession thereof, and thereafter performed such acts with reference thereto, as were consistent with ownership; that said Daniel R. Brown departed this life testate, on March 11, 1893, in possession of said real estate, by virtue of said deed, and that by the terms of his will, his rights therein passed to his son, the appellee Horace G. Brown; that said appellee entered into the possession of said real estate upon the death of his father, and thereafter performed such acts with reference thereto, as were consistent with ownership, including the making of repairs and improvements, cutting timber for sale, excavating ditches for drainage, and the execution of deeds of conveyance for two separate portions thereof; that said acts so performed by said Daniel R. Brown from the date of his deed from said Boyd until the time of his death, and so performed by his son, the appellee Horace G. Brown, from the death of his father to the commencement of this action, were continuous, uninterrupted, open and notorious, and of such a character as were consistent with exclusive and adverse possession thereof. There is no evidence, however, that appellant had any actual knowledge of the recording of the deed from said Boyd to said Daniel R. Brown, or that the same had been executed, or that he had any actual knowledge that either of said Browns were claiming to own all of said real estate.
We do not understand that appellant denies that there is evidence tending to establish the facts stated, but insists that the finding of the ultimate fact in question is not warranted, because the undisputed evidence shows, that he and the said James K. Boyd were tenants in common of the real estate in suit; that after the conveyance by the latter to Daniel R. Brown, he and said Brown became tenants in common thereof, and that after the death of the latter, he and appellee Horace G. Brown bore the same relation thereto. Based on these facts he contends that since the possession of one tenant in common is the possession of all in the absence of actual knowledge, that the tenant in actual possession is asserting an adverse claim, the ultimate fact under consideration is not shown to exist, as there is a total absence of any evidence showing such knowledge on his part. Appellant's conclusion would be plausible, were it not based on a false premise, viz.: that the tenant with only constructive possession, must have actual knowledge of the adverse claim of the tenant in actual possession. This is true, since constructive knowledge will suffice to put the statute of limitations in operation, under the circumstances stated. Price v. Hall (1895), 140 Ind. 314, 39 N.E. 941, 49 Am. St. 196; Geisendorff v. Cobbs (1911), 47 Ind.App. 573, 94 N.E. 236; Carr v. Alexander (1912), 149 S.W. 218; Mathews v. Baker (1916), 47 Utah 532, 155 P. 427; Hynds v. Hynds (1913), 253 Mo. 20, 161 S.W. 812; Roberts v. Cox (1913), 259 Ill. 232, 102 N.E. 204; Allen v. Morris (1912), 244 Mo. 357, 148 S.W. 905, Ann. Cas. 1913D 1310, and note.
This leads us to consider whether appellant's said cotenants asserted claims to the real estate in suit adverse to him and whether he had constructive knowledge thereof. Where a party obtains a deed from one of two or more cotenants for the whole estate in lands, and takes possession of the same in pursuance thereof, it will be presumed, the contrary not appearing, as is true in the instant case, that, in so doing, he intended to assert all the rights which his grantor had assumed the authority to invest in him. King v. Carmichael (1893), 136 Ind. 20, 35 N.E. 509, 43 Am. St. 303; Price v. Hall, supra. On the question of constructive knowledge it should be noted, that said Daniel R. Brown had his deed to the real estate in suit from James K. Boyd duly recorded in 1886 in about two months after its execution. This had the effect of giving appellant constructive knowledge of the intention of the grantee therein to claim title to the whole of said real estate. Grubbs v. Leyendecker (1899), 153 Ind. 348, 353, 53 N.E. 940; Sinclair v. Gunzenhauser (1912), 179 Ind. 78, 125, 98 N.E. 37, 100 N.E. 376; Bakemeier v. Bakemeier (1919), 72 Ind.App. 165, 171, 122 N.E. 681; Worthley v. Burbanks (1897), 146 Ind. 534, 543, 45 N.E. 779; Watson v. Jeffrey (1884), 39 N. J. Eq. 62; Joyce v. Dyer (1905), 189 Mass. 64, 75 N.E. 81, 109 Am. St. 603; Robles v. Robles (1913), 154 S.W. 230. Since appellee Horace G. Brown derived his title to the real estate through his father, said Daniel R. Brown, by will, such privity existed between them as will authorize the tacking of the two possessions, and thus make up the period necessary to give said appellee title, if other attending facts are sufficient to warrant it. 2 C. J. 88; 1 R. C. L. 718; Doe v. Brown (1853), 4 Ind. 143; McEntire v. Brown (1867), 28 Ind. 347; Stalcup v. Lingle (1921), 76 Ind.App. 242, 131 N.E. 852; Rembert v. Edmondson (1897), 99 Tenn. 15, 41 S.W. 935, 63 Am. St. 819; Ramsey v. Glenny (1891), 45...
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