McClenahan v. Stevenson
| Decision Date | 20 October 1902 |
| Citation | 91 N.W. 925,118 Iowa 106 |
| Parties | JAMES MCCLENAHAN, et al, Exrs., Appellants, v. CATHERINE M. STEVENSON, et al, Appellees, AND JAMES MCCLENAHAN, et al, Executors, Appellants, v. CATHERINE M. STEVENSON, Appellee |
| Court | Iowa Supreme Court |
Appeal from Buchanan District Court.--HON. A. B. BLAIR, Judge.
SUIT in equity to quiet title to certain lots and lands in Buchanan county. Plaintiffs claim title as executors of the estate of David Stevenson, Jr., deceased. Defendants, who are the widow and heirs at law of Daniel Stevenson, also deceased, claim that he (Daniel) was the real and beneficial owner of the property at the time of his death in the year 1868; that David held the legal title in trust for the heirs of Daniel under an oral agreement to reconvey to said widow and heirs that Daniel purchased the same with his own means, and that David held the title in trust; that they (defendants) have been in the adverse possession of all of such property under a claim of right since the year 1868, and that they have occupied a part of the property since the year 1865 under a claim of right; that, after the death of Daniel, David purchased other property, and put defendants in possession thereof, who took and used the same under a claim of right and have been in the adverse possession thereof for more than 10 years. Plaintiffs denied the claims made by defendants and also pleaded a lease to them of the property, or a part thereof, in the year 1892. Defendants admit the making of the lease, and, among other things, say it was obtained by fraud and misrepresentation, and also pleaded a disclaimer of the same after its execution. On these as well as some other issues, which will be referred to in the body of the opinion, the case was tried to the court, resulting in a decree dismissing plaintiffs' petition, and quieting title in the defendants. Plaintiffs appeal.
Reversed.
J. C. Gates, Dunham, Norris & Stiles and Bronson & Carr for appellant.
Ransier & Everett for appellees.
The records show a complete chain of title from the patent down through mesne conveyances, including transfers from Daniel M. Stevenson to David Stevenson, in plaintiffs, as executors of the last will and testament of David Stevenson, Jr., deceased, who died in the city of New York in the year 1892; and they should have a decree quieting title to all said property, unless it be for some of the defenses pleaded by defendants in their answer and cross-bill. The burden is on the defendants to establish one or more of these defenses, and as to some of them the evidence must be clear, satisfactory, and convincing. Defendants' principal reliance is on the statute of limitations, or, in other words, adverse possession. The land in controversy consists of a number of lots in the town of Jessup, a 40-acre timber lot, and 240 acres of land situated in what is known as "Perry Township," all, as has been stated, lying in Buchanan county, Iowa. Defendants say they have been in possession of the Jessup lots since about the year 1863, of the timber 40 since about the year 1865, and of the various lots comprising the 240 acres from varying periods between the years 1863 and 1883 down to the present, and that their possession has been actual, open, hostile, notorious, uninterrupted, and under claim of right during all of these years. This issue is of so much importance that we shall consider it before going to the other points in the case.
It is well to state before going farther that Daniel M. Stevenson never owned any of the property in dispute except 50 acres of the 240 and 14 lots in the town of Jessup, and this he conveyed to David Stevenson, Sr. David Stevenson, Jr., who is plaintiff's testate, acquired title to all of the property through a devise from his father, David, Sr. It is claimed by defendants that the conveyance of these 14 lots and of the 50 acres of land by Daniel to David, Sr., was without consideration, and in trust for the widow and heirs at law of Daniel M. Stevenson. The other property in dispute was originally acquired by David Stevenson, Sr., from strangers to Daniel, after Daniel's death, and he (Daniel) never had any record title thereto. The defendants claim, however, that Daniel furnished the consideration for the purchase of the 40-acre timber tract, and that, although the title was taken in the name of David, Sr., he held the same in trust for Daniel and his heirs. Defendants also claim title to part of the property under a parol gift from David Stevenson, Sr., followed by adverse possession for the statutory time. These matters are referred to at this time not for the purpose of disposing of them, but to a better understanding of the issue of adverse possession.
We now return to that issue. Except as to the timber 40, the defendants, or some of them, have been in the actual and uninterrupted possession of all the property in dispute for the statutory period of limitations; but the real question in the case is as to the character of that possession,--whether hostile or permissive, under claim of right or color of title, or in subordination to and in recognition of the title of the true owner. This is, of course, a question of fact, and for its solution we have been compelled, on account of counsel's failure to agree on the testimony, to resort to a long transcript of the evidence. Presumptively, the possession was in subordination to the title of the true owner, and the burden is on defendants to show that their possession was hostile, which necessarily involves knowledge, either express or implied, on the part of the true owner, that such possession was adverse, and under claim of right or color of title. If possession is originally acquired in subordination to the title of the true owner, there must be a disclaimer of the title from him, and actual hostile possession, of which he has notice, or which is so open and notorious as to raise a presumption of notice. These rules are well settled, and not disputed by the parties, as we understand it. They are announced by a long line of decisions, of which we need only cite the following: Kirk v. Smith, 22 U.S. 241, 9 Wheat. 241 (6 L.Ed. 81); Davenport v. Sebring, 52 Iowa 364, 3 N.W. 403; Litchfield v. Sewell, 97 Iowa 247, 66 N.W. 104; Grube v. Wells, 34 Iowa 148; Schwallback v. Railway Co., 69 Wis. 292, and authorities cited. We have, then, to inquire whether plaintiffs have met the burden imposed upon them: First, as to whether or not their possession was hostile or permissive; second, as to whether such possession was under color of title or claim of right. In the instant case these two propositions are so closely allied that it is difficult to discuss one without considering the other. The exact contention made by the defendants, as we understand it, is that as to the property conveyed by Daniel to David Stevenson, Sr., the conveyance was without consideration, and either to defeat and defraud certain creditors of Daniel, or upon a parol trust that he (David) should hold the property for the family of Daniel; and, as to the other property, that David Sr., either made a parol gift of it to defendant Catherine M. Stevenson for her individual benefit, or for the benefit of herself and family, or that he intended to convey the same to her or them, and that the defendants' occupancy has been under one or the other of these claims. These propositions of fact are denied by the plaintiffs. They insist, and offer evidence to show, that defendants' possession was at all times subservient to and in recognition of plaintiffs' title; that they were lessees of plaintiffs' testate and his devisor, and have at no time asserted title in hostility to the title of plaintiffs and their devisors. Citation of authorities is hardly necessary to show that a fraudulent conveyance is good as between the grantor and grantee and all persons claiming in privity with them, and that an express trust cannot be established by parol. In so far as defendants were asserting title as beneficiaries under a parol trust, they were not claiming anything in hostility to the legal title. At law the cestui que trust is regarded as a tenant at will to the trustee, and until this tenancy is terminated there can be no adverse possession. Marr's Heirs v. Gilliam, 41 Tenn. 488, 1 Cold. 488; Jones v. Shomaker, (Fla.) 26 So. 191; Smith v. King, 16 East, 283. The possession of one is the possession of the other. There may be circumstances under which the beneficiary may take advantage of the statute, but they do not appear in this case. Even now the defendants are claiming the benefit of either an express or resulting trust, and not in hostility to the legal title.
With reference to the claim that the conveyance from Daniel to David was in fraud of creditors, and that defendants, as successors of Daniel, are holding adversely to David and his devisees, we have already seen that, if it be conceded that the conveyance was in fraud of creditors, it was good as between the parties thereto and all persons in privity with them. In such cases a grantor in possession is presumed, in the absence of a contrary showing, to be holding in subordination to the title of his grantee. McNeil v Jordan, 28 Kan. 7. Of course, such a grantor may acquire title by adverse possession, even as against his warranty deed; but he must explicitly disclaim holding under his grantee, and openly assert his title in hostility to the title claimed under his own previous deed. Knight v. Knight, 178 Ill. 553, 53 N.E. 306 (53. N.E. 306); Stearns v. Hendersass, 9 Cush. 497 (57 Am. Dec. 65). But the mere fact that the grantor and his heirs remain in possession, enjoying the property in the same manner as they did before the conveyance was...
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