McAllister v. Hartzell
| Decision Date | 28 March 1899 |
| Citation | 60 Ohio St. 69,53 N.E. 715 |
| Parties | McALLISTER v. HARTZELL. |
| Court | Ohio Supreme Court |
Error to circuit court, Trumbull county.
The action below was by Edward A. Hartzell against Margaret McAllister, in ejectment, the land in controversy being described as situate in the village of Niles and being a strip 8 1/ 2 feet in width by 60 feet in length, and extending along the north side of lot 15, and across the north end of lot 16, of Baldwin's addition to Niles, and extending from Furnace street to Mosquito creek on the east. The petition contained the usual averment of title in fee in the plaintiff, and that defendant unlawfully keeps plaintiff out of possession. The action was commenced October 19, 1895. The answer denied the title of plaintiff, and set up the statute of limitations of 21 years. The reply denied the new matter of the answer, and averred that defendant is now estopped to deny plaintiff's title by reason of certain alleged representations of defendant made at the time of plaintiff's purchase. The trial resulted in a verdict finding the issues for the defendant, and judgment for defendant followed. On error to the circuit court the judgment was reversed for error in the refusal by the trial court to give certain specified propositions to the jury requested by the plaintiff, and in the charge given in lieu thereof, and in an answer given by the court to a question presented by the jury after their retirement. That court found no other error in the record. The plaintiff in error defendant below, asks here a reversal of the judgment of the circuit court, and an affirmance of that of the common pleas. Reversed.
1. Where the statute of limitations is interposed in an action of ejectment, and it is shown that the original seizure was a disseisin, any subsequent act or declaration of the claimant or his predecessor in title, which does not estop the claimant to plead the statute, nor suspend the right of the holder of the title to prosecute an action to recover possession, will not be sufficient to arrest the running of the statute. Neither a mere offer to buy within the 21 years nor an acknowledgment by the claimant within that time that the title was in another, or that the claimant did not own the land, will have that effect.
2. Where two issues are presented in the pleadings for the determination of the jury, and there is a verdict finding the issues for the defendant, and such finding on either issue entitles him to a general judgment in his favor, and a judgment is rendered on the verdict, such judgment will not be reversed for error in the instructions of the court to the jury relating exclusively to one of the issues. Sites v Haverstick, 23 Ohio St. 626, approved and followed.
George M. Tuttle, for plaintiff in error.
L. F. Hunter and E. L. Boynton, for defendant in error.
SPEAR, J. (after stating the facts as above).
Evidence was given at the trial by the plaintiff below tending to maintain his title to the land in dispute, and by the defendant below tending to rebut that proof. Also evidence by defendant to establish her defense of the statute of limitations. Plaintiff, in rebuttal, gave evidence tending to show that the predecessor in title of defendant had within 21 years before the bringing of the action, and while in possession, admitted that the title was in another, and had offered to purchase the land of that other. Also evidence tending to show that defendant herself, or her husband in her hearing, and in the presence of plaintiff, at the time of a sale at which plaintiff bought lots called 15 and 16, made declarations admitting that the true line between her land and said lots was five feet north of the south line of her building; and in surrebuttal defendant gave evidence in contradiction thereof. It appeared in evidence, apparently without question, that in the year 1869 or 1870 a tenant of the then owner of adjoining lands, now owned by defendant, constructed a substantial building thereon, which extended over and upon the strip in dispute, covering the same; and that as early as May, 1872, defendant's predecessor in title purchased the land adjoining the strip on the north, including the building, and then entered upon the whole so covered by the building, and took exclusive occupancy of it, and that that possession has been ever since maintained uninterruptedly by successive purchasers, including defendant. Upon this state of the proof the plaintiff requested the court to charge the jury that: ‘An offer to purchase, by the adverse claimant, during and within the period of twenty-one years before this suit was brought, the land claimed adversely in the suit, would rebut the presumption of title gained by twenty-one years' adverse possession.’ Also: ‘Any acknowledgment by the claimant, made within the period of twenty-one years, that the title was in another, or that the claimant did not own the land, the statute of limitations would not run.’ But the court refused to give either proposition, and in lieu thereof charged as follows: ‘An offer to purchase, by the adverse claimant, during and within the period of twenty-one years before this suit was brought, the land claimed adversely in the suit, would be evidence bearing upon the question whether or not she held the property adversely, and should be considered by you in the case; or, if there is any other evidence as to what the defendant said or did in regard to where the south line of the McAllister property was, this should be considered as bearing upon her claim of adverse possession and ownerehip of the property in question; or, if she made any acknowledgment in regard to how she was in possession of the property, it should be taken by you.’ The refusal to give the requests, and the giving of the instruction above quoted, the circuit court held to be error.
Recurring to the statute, we find, as to the limit, this: ‘An action for the recovery of the title or possession of real property, can only be brought within twenty-one years after the cause of such action accrues;’ and, as to the requisites of a cause of action, these elements: that plaintiff has a legal estate, and is entitled to possession, and that the defendant unlawfully keeps him out. The question, therefore, is, was the action begun in time? In other words, did the statute begin to run 21 years before the action was commenced, and if it did, were the acts and declarations charged sufficient to arrest its course? Did either of the essentials cease to exist? That the statute began to run more than 21 years before suit is not open to dispute. There is no question as to the original seizure. It was a disseisin, judged by all the definitions in the books. Nor is there question that the occupancy has been actual, open, exclusive, and continuous from that day to this. Was it, during all that time, adverse? The claim is that it ceased to be adverse. This is based upon the proposition that the acts and declarations above recited destroyed the adversary character of the possession, and therefore tolled the statute. The possession which may in time prove a full defense against the holder of the record title must be actual, open, exclusive, continuous, and adverse. The first four of these conditions, even if involved here,-which they are not,-have become so generally understood as not to require comment; the last has been a source of extended and almost illimitable controversy. It is observed by the author of Smith's Leading Cases, in his notes to Taylor v. Horde, 1 Burrows, 60, to be found at page 660 of part 2 of that work, that: ‘The doctrine of adverse possession until very lately constituted, and perhaps still constitutes, one of the least settled, although most important, heads of the English law;’ and he quotes Lord Mansfield as saying in the principal case, referring to the general subject, that ‘the more we read, unless we are very careful to distinguish, the more we shall be confounded.’ It is understood that subsequent legislation, which will be referred to later on, has largely, if not wholly, relieved the confusion in England; but similar uncertainty seems to have prevailed in many of the states of this Union, and the law in America on the subject has appeared to be as uncertain as it once was in the mother country. Our interest in the inquiry has led us to examine, not only the authorities cited by counsel, but great numbers in addition; but it is not proposed here to try to harmonize the differing opinions and decisions, for it is not within the compass of the common mind to reconcile the irreconcilable.
The view taken by the circuit court in its holding, and here made in argument by the learned counsel for the defendant in error, is thought by them to be consonant with, and supported by the declarations of, a number of text writers and decisions of not a few of our state courts. Support is found in the text of Tyler on Ejectment and Adverse Enjoyment. On page 921 it is observed: ‘An offer to purchase land by a party of another is such a recognition of the title of the latter as will bar the defense of adverse possession.’ The citation is to Jackson v. Britton, 4 Wend. 507, where the headnote is that: The facts of the case, however, show that the negotiations were much broader than the statement of the headnote, and the case itself hardly supports the text. Expressions in other text-books, here and there, seem to give color to the proposition that the claimant's mere declarations disclaiming title may arrest the statute. For instance, in 2 Wood, Lim. p. 690, is found this...
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