McAuliff v. Parker

• Decision Date: 19 November 1894
• Citation: 38 P. 744,10 Wash. 141
• Parties: MCAULIFF v. PARKER.
• Court: Washington Supreme Court

38 P. 744

10 Wash. 141

MCAULIFF v. PARKER.

Supreme Court of Washington

November 19, 1894

Appeal from superior court, Walla Walla county; William H. Upton Judge.

Action by James McAuliff, as administrator of the estate of Henry Marlin, deceased, against Hollon Parker, to recover possession of certain real estate. From a judgment for plaintiff, defendant appeals. Reversed.

Lester S. Wilson, for appellant.

George T. Thompson, Moses P. O'Brien, and James T. Jones, for respondent.

DUNBAR C.J.

On August 30, 1893, plaintiff brought his action in ejectment to recover possession of a certain lot in the city of Walla Walla, which it was alleged belonged to the estate of plaintiff's intestate, Henry Marlin, deceased and that it was in the unlawful possession of the defendant. The complaint is in the ordinary form of ejectment, and prays for the possession of the property, and the recovery of the rents and profits during the period of such alleged wrongful detention. The defense was two-fold: First, that the defendant had acquired title to the land and premises in controversy by open, notorious, exclusive, adverse, hostile possession thereof, for the statutory period next before the commencement of the action. And, second, an equitable defense, viz. that the defendant, being the owner in fee and in possession of the land described, on the 28th day of February, 1879, made, executed, and delivered to Marlin plaintiff's intestate, a deed of conveyance of said land for the purpose of securing the repayment of the loan of $300 made by said Marlin to the defendant on said date, and for no other purpose, and that the said Marlin received said deed of conveyance, and held the title thereunder, as security for the repayment of said loan, and for no other purpose; that afterwards, in October, 1879, the defendant repaid the said Marlin the said sum borrowed, and at the request of this defendant said Marlin and his wife conveyed, by good and sufficient deed, in fee, to Orrin Parker, a brother of this defendant, and in trust for this defendant, the said land and premises, in discharge and release of the said land; that the said deed of conveyance by Marlin and wife to said Parker was mislaid and lost, and was never recorded or filed for record; and that the defendant, after diligent search, was unable to find the same. The reply controverted the affirmative facts set up in the answer. The case was tried by a jury, who returned a verdict for plaintiff, and awarded him the ownership and possession of the premises, and $253 rents and profits.

In the course of his testimony tending to establish adverse possession for the statutory period, the defendant offered to show that the premises in controversy were generally reputed to belong to the defendant, from 1880 down to the commencement of the action, in the community where it was situated. The court excluded this testimony as incompetent and immaterial. This ruling of the court is alleged by the appellant to be error. This contention of the appellant, we think, must be sustained, both on reason and authority. All the authorities hold that the question of adverse possession is a question of fact, and it must be a possession that is known to the owner of the legal title. If there is direct proof that the owner of the legal title knew of the adverse possession, it is not necessary to go further; but the presumption is that, if the adverse possession is open and notorious, the owner of the title will know it. The reputed possession is certainly some evidence that the owner is aware of such possession. This principle is substantially promulgated by Buswell on Limitations and Adverse Possession, in section 249, where that author says: "When the owner of the legal title has actual knowledge that his land is being held against him under claim of right, it is obvious that the fact of the notoriety of the adverse possession becomes immaterial [citing Clark v. Gilbert, 39 Conn. 94]; but, when it does not appear that the owner has such actual notice, the occupation must, in order to be effectual, be visible and notorious, inasmuch as the law, in giving title by adverse possession, proceeds upon the ground that there has been an acquiescence upon the part of the owner of the land, which acquiescence cannot be presumed if an occupation be clandestine." This question was directly decided in the case of Sparrow v. Hovey, 44 Mich. 63, 6 N.W. 93. Judge Cooley, speaking for the court in that case, said: "Defendant, having shown his possession for the requisite length of time, under tax titles which are now conceded to be invalid, was suffered to prove that the land was generally understood to be and called his in the neighborhood. Exception was taken to this evidence, but we think it was competent. It tends to establish the notoriety of defendant's possession and claim of title, which were important facts in his defense."

If for no other error, the judgment in this case would have to be reversed, for it seems to us that, under the undisputed testimony in this case, the appellant has made his claim good by adverse possession. It is undisputed that Parker, as attorney in fact of Orrin Parker and wife executed a deed of the premises to one Mooers on October 9, 1880. This deed was placed in escrow, to be delivered when the bargain was consummated. This bargain was never consummated, and there is no testimony attempting to show that it was. The testimony conclusively shows that from and after October, 1880, Mooers remained continuously in possession of the premises, by himself and agents and tenants,...