Knight v. Denman

• Court: Supreme Court of Nebraska
• Writing for the Court: PER CURIAM.
• Citation: 90 N.W. 863,64 Neb. 814
• Parties: KNIGHT v. DENMAN ET AL.
• Decision Date: 21 May 1902

64 Neb. 814
90 N.W. 863

KNIGHT
v.
DENMAN ET AL.

Supreme Court of Nebraska.

May 21, 1902.

Syllabus by the Court.

[90 N.W. 863]

1. A denial of the very words of the allegations of the petition, without denying their substance and effect, tenders no issue.

2. An answer denying that plaintiff's testatrix on a date named “was the owner in fee simple and entitled to the possession” of the land in controversy, and denying that she died “on or about” said date, being consistent with ownership after said date and before she died, and also with ownership before and at said date, subject to a right of possession in some one else, does not put the plaintiff upon proof of title.

3. An instruction which states that, if the owner of lands does not bring an action against

[90 N.W. 864]

one who wrongfully withholds possession within 10 years after his cause of action accrues, he loses his right to bring or maintain such action, without adding that defendant's possession must be continuous, open, notorious, exclusive, and adverse during the full period of 10 years, is misleading and erroneous.

4. The error in giving an incorrect or misleading instruction is not cured by giving other instructions which state the law correctly, where the several instructions are inconsistent or conflicting, or where, taken as a whole, they may convey an erroneous impression.

5. An occupant who claims by adverse possession must show that he occupied adversely during the entire period of 10 years.

6. Where such occupant entered originally without color of title or claim of right, and the acts relied on to show entry and occupation were consistent with a mere intention to trespass from time to time until interfered with by the true owner, his testimony that he intended to take possession and hold and occupy as owner, uncorroborated by acts necessarily indicating such intention, is not sufficient to require a finding in his favor.

Commissioners' opinion. Department No. 2. Error to district court, Butler county; Bates, Judge.

Action by John D. Knight, executor of Helena V. W. Knight, deceased, against Amos H. Denman and another. Judgment for defendants, and plaintiff brings error. Reversed.

Strode & Strode and Matt Miller, for plaintiff in error.

Geo. P. Sheesley and Good & Slama, for defendants in error.

POUND, C.

John D. Knight, as executor of Helena V. W. Knight, brought this action against Denman and another to recover possession of a tract of 320 acres in Butler county. He alleges that on and prior to the 25th day of April, 1898, said Helena V. W. Knight was the owner and entitled to the immediate possession of said land; that she died on or about said 25th day of April, 1898, leaving a last will and testament, in which plaintiff is named as executor; that he was duly appointed executor, pursuant thereto, by the county court, qualified, and entered upon his office, and is entitled to the possession of said premises. He further alleges that the defendants unlawfully keep him out of possession. The defendant Denman, in his answer, denies the several allegations of the petition seriatim, in their very words, and adds a plea of adverse possession and the statute of limitations. Issue having been joined by reply, a trial was had, resulting in a verdict and judgment for the defendant. The plaintiff brings the cause here on error.

Plaintiff did not prove title at the trial, and the first question to be met is whether such proof was necessary under the pleadings. Where there is a general denial, or the allegations of title in the plaintiff are otherwise denied, it is well settled that plaintiff must establish a title from the common source if the parties claim from a common source, or from the ultimate source if they do not. As the rule is commonly stated, he must recover on the strength of his own title, not upon the weakness of that of his adversary. But the rule has no application where plaintiff's paper title is not put in issue, and the defendant relies solely upon adverse possession to establish an independent title in himself. Such, we think, is clearly the case here. The answer tenders no issue whatever as to the title asserted in the petition. A denial of the very words of the allegations of the petition, without denying their substance and effect, cannot be given any force. Harden v. Railroad Co., 4 Neb. 521; Kuhland v. Sedgwick, 17 Cal. 123; 1 Enc. Pl. & Prac. 798. The answer in the case at bar is particularly obnoxious to this objection. It denies that Helena V. W. Knight “on and prior to the 25th day of April, 1898, was the owner in fee simple and entitled to the possession of” the land in controversy, and denies that she died “on or about” said date. This is entirely consistent with ownership after April 25, 1898, and before she died, and also with ownership before and at said date, and at her death, subject to a right of possession in some one else as tenant or licensee. Plaintiff was not put on proof of title by such denials.

We think one of the instructions of the court which is excepted to so palpably wrong that it is not necessary to consider any of the other errors assigned. In this instruction the court stated that, if the owner of lands does not bring an action against one who wrongfully withholds possession within 10 years after his cause of action accrues, he loses his right to bring or maintain such action. This proposition is made very emphatic by an explanation which is added, to the effect that the right of action is lost unless action is brought within 10 years from the time the owner had a right to bring it, provided the defendant invokes the protection of the statute. It is obvious that, without adding that defendant's possession must be continuous, open, notorious, exclusive, and adverse during the full period of 10 years, the proposition stated in the instruction is misleading and erroneous. The error was not cured by giving other instructions which state the law as to adverse possession correctly. Other instructions may supply details or amplify and explain. But where an instruction, as in this case, covers the whole field explicitly, and purports to tell all that is required to bar the plaintiff's action, the further instructions are simply in conflict with it, and can only produce confusion and misunderstanding. Railroad Co. v. Fox, 56 Neb. 746, 77 N. W. 130;Williams v. McConaughey, 58 Neb. 656, 79 N. W. 549;Knapp v. Railroad Co., 57 Neb. 195, 77 N. W. 656;Jensen v. Halstead (Neb.) 85 N. W. 78. Moreover, in the case at bar the instructions, as a whole, convey an erroneous impression. There is nothing about them to indicate that the instructions as to adverse possession supplement or have any reference to the propositions stated in the instruction under review. A person

[90 N.W. 865]

unacquainted with the law might well understand that there is a distinction between actions to maintain the title and those for recovery of possession only; that while adverse possession, as defined in some of the instructions, would confer a perfect title, thus of necessity cutting plaintiff off, plaintiff's right to maintain an action to recover possession might be cut off by mere failure to sue in 10 years after an entry by defendant, as explained in the other instruction, whether the requirements as to continued and exclusive adverse possession had been met or not. As the plaintiff introduced evidence which, if believed, tended to show a recognition of his title before the 10 years had elapsed, the prejudicial character of such instructions is manifest.

But counsel argue that the verdict rendered was the only one that could be rendered under the evidence, and hence that the judgment must...