Lamme v. Dodson

• Citation: 4 Mont. 560
• Parties: LAMME v. DODSON and others.
• Decision Date: 09 January 1883
• Court: United States State Supreme Court of Montana

4 Mont. 560

LAMME

v.DODSON and others.

Supreme Court of the Territory of Montana.

Filed January 9, 1883.

He who holds the legal title to real property is presumed to have the right to possession until a better right is shown.

The including of real property in the inventory of a decedent's estate gives the executor no exemption before settlement of the estate, from suit, on the part of a person claiming title in himself entirely adverse to that of the decedent.

To set up facts in avoidance of new matter in the answer is not necessarily a departure in the pleadings, or an abandonment of the claims in the allegations of the complaint.

An equitable title must be pleaded and relief asked thereon, in order to allow evidence thereof to be given.

Where one enters in subservience, or holds over after some previously granted right, there must be a positive and continued disclaimer of the owner's title, brought home to such owner, to lay a foundation for an adverse taking, possession, or holding to make the statute of limitations run.

From First district, Gallatin county.

E. W. & J. K. Toole, for appellant.

H. N. Blake, for respondents.

GALBRAITH, J.

The complaint in the action alleges title in the appellant to the piece of ground in controversy, from and after the sixth day of October, 1871; a wrongful and unlawful possession of the same by the respondents since the ninth day of June, 1881. Appellant demanded the possession thereof of the said Dodson, which was and still is refused; that since about the twentieth day of June, 1881, the respondent Nevitt, in conjunction with Dodson, has been in the wrongful and unlawful possession of the premises, and that on the twenty-fourth day of August, 1881, the appellant demanded possession of Nevitt also, which was and still is by him refused. That the respondents still continue to withhold the possession of the premises from the appellant.

There were separate answers by the respondents. Each answer denies specifically each of the above allegations of the complaint, except that of the demand for the possession of the premises, and the refusal thereof by each of the respondents; and alleges affirmatively that respondent Dodson, as the duly appointed and qualified executor of the last will and testament of Thomas B. Warfield, who died on or about the thirteenth day of February, 1881, “took possession and charge of the above premises as a part of the property of the estate of said Warfield, deceased, and has continued to control and manage the same as such executor,” and that he has no other interest of any kind whatever in the premises. That Thomas B. Warfield, in his life-time, and respondent Dodson, as executor, etc., have been in the open, notorious, and uninterrupted adverse possession of the premises for five years immediately preceding the bringing of this action, and that the right of action of appellant is barred by the statute of limitations. The answer of Nevitt specifically denies the allegations of the complaint, and avers that since the twentieth of June, 1881, he has been in possession of the premises only as the tenant of the respondent Dodson, acting executor, etc., of Thomas B. Warfield, deceased. The replication, replying to the answer of Dodson, denies that he took possession or charge of the premises as a part of the estate of T. B. Warfield, deceased, or continued to control or manage the same as such executor; and also denies that the right of action is barred by the statute of limitations.

Appellant alleges affirmatively that in May, 1872, the said Warfield entered into a parol contract with appellant for the purchase of the premises, by which he agreed to build a brick wall for appellant, whenever demanded of him, upon and along the western boundary line of the premises, sufficient to serve “for the eastern wall of a building which appellant then intended to erect, and did subsequently erect,” upon the adjoining premises on the west; and that no right or title should accrue to the said premises to the said Warfield until the performance of this agreement by him, in consideration whereof the appellant agreed that upon the performance by Warfield of his promise, the appellant would sell and convey to him the premises in controversy; that Warfield occupied the premises by virtue of this agreement, and not otherwise; that in April, 1880, and that at other times thereafter, appellant demanded of Warfield the performance of his part of the agreement, which Warfield never did.

The transcript contains a full statement of the evidence, which establishes the following facts: That the appellant obtained the title in fee-simple to the premises in controversy on the sixth day of October, 1871; that at and prior to the purchase by the appellant, Warfield had been the tenant of the premises of Tracy, who was the appellant's grantor; that Warfield admitted to a witness demanding rent of him, as the attorney of Tracy, for a house which then stood on the premises, and was occupied by Warfield, (the witness thinks in 1872,) “that he would pay no rent to Tracy, and that Lamme was the person to whom he was to pay the rent;” “that he was not obliged to pay rent for that year to Tracy, but to Lamme;” “that there was a parol agreement between the appellant and Warfield, that he, Warfield, would erect a brick wall for the appellant on the west side of the premises in controversy, upon the completion of which the appellant was to sell him the premises, and make him a conveyance for the same;” that about the year 1880 the appellant demanded of Warfield the fulfillment of the above agreement, and that Warfield never fulfilled the agreement with appellant nor performed any part thereof; that Dodson is the duly-appointed and qualified executor of the last will and testament of Thomas B. Warfield, deceased; that appellant has presented no claim or demand against the estate of the said Warfield to the said executor; that in 1872 the said Warfield tore down and removed the building then on the premises, which had been thereon in 1871, and erected another on the ground; that Warfield remained in possession of the premises until his death, viz., the thirteenth of February, 1881; that said executor, as such, took possession of the premises and rented the same to Nevitt; that the premises were appraised as a part of the property of the estate of Thomas B. Warfield, on February 24, 1881, and mentioned in an inventory of the estate.

After hearing the testimony, the court on its own motion instructed the jury to find a verdict in favor of the respondents. The jury returned a verdict for respondents accordingly, and judgment was rendered thereon.

We will consider, first, the reasons urged by the respondents to sustain the action of the court. It is claimed “that the plaintiff in ejectment must show a right to the possession of the property; and proof of the legal title is not sufficient.” The cases cited by the respondents do not mention this position. It is a fundamental principle of the law, in relation to real estate, that “when there is no adverse holding, possession follows property in the land, and is in him who has the title.” 3 Wash. Real Prop. 118, citing Holley v. Hawley, 39 Vt. 525. The law of this territory provides that “in every action for the recovery of real property or the possession thereof, the person establishing a legal title thereto is presumed to have been possessed thereof, within the time required by law, and the occupation of the property by any other person is deemed to have been under and in subordination of the legal title, unless it appear that the property has been held and possessed adversely to such legal title for five years before the commencement of the action.” The true principle, therefore, is that he who holds the legal title to real property is presumed to have the right to the possession thereof until a better right is shown.

It is claimed by respondents that the action by the appellant was brought prematurely, for the reason that, having commenced no action against Warfield, the executor, Dodson, had obtained possession of the property under the laws of the territory, and was entitled to continue in such possession until the estate was settled, (referring to section 127 of the probate practice act.) But to assert that the premises in controversy are a part of the estate of Warfield, deceased, is simply begging the question at issue. The mere fact that an executor claims that property is a part of decedent's estate, and includes it in his inventory of such estate, does not make it so in fact. The appellant alleges this property to be his own, and therefore it is not any part of the property of the estate of Warfield. To say that property, by being mentioned in the inventory of a decedent's estate, taken possession of by his executor, and claimed as part thereof by him, is thereby conclusively presumed to be a part of such estate until the same is settled by an executor or administrator, would be productive of serious mischief, and we will not place such a construction upon this section of the probate law. The cases referred to by respondents, to maintain their position, (Meeks v. Kirby, 47 Cal. 168, and Chapman v. Hollister, 42 Cal. 462,) are only to the effect that an heir or devisee, or their grantees, are not entitled to the possession of their share of decedent's estate, and cannot maintain ejectment therefor until the administration of the estate is closed, and was rendered in view of the same and a similar provision of the probate practice act of that state. The reasons are evident; for in addition to the express provisions of the statute to permit the heirs or devisees to take possession of the estate before its settlement, “would tend to confusion, delay, and embarrasment in the administration.” But we think that neither this law itself, nor the reasons above given, apply to a case where the claim is by one not bearing such a...