McKnight v. Basilides

• Decision Date: 06 November 1943
• Docket Number: 29157.
• Citation: 19 Wn.2d 391,143 P.2d 307
• Court: Washington Supreme Court
• Parties: McKNIGHT et al. v. BESILIDES et al.

143 P.2d 307

19 Wn.2d 391

McKNIGHT et al. v. BESILIDES et al.

No. 29157.

Supreme Court of Washington

November 6, 1943

Rehearing Denied Dec. 11, 1943.

Department 2.

Action by Alice McKnight and another against Charles Basilides and another for partition of real estate and for an accounting of income obtained by defendant in possession. From a judgment named defendant appeals.

Modified and, as modified, affirmed.

MALLERY J., dissenting.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

W. C. Hinman and D. A. Maurier, both of Seattle, for appellant.

Wm. A. Gilmore and W. H. Cook, both of Seattle, for respondents.

SIMPSON Chief Justice.

This is an action for the partition of real estate and for an accounting of the income obtained by the defendant in possession.

Judgment of default was entered against defendant Ruth Allison.

At the conclusion of the trial, the court made findings of fact and conclusions of law, and entered its decree of partition. The decree provided (1) that each of plaintiffs had an undivided one-sixth interest in two pieces of real estate, one at 5203 First Avenue Northwest, known as the 'Big House,' and the other, at 326 West Forty-first street, known as the 'Little House,' both properties being situated in the city of Seattle; (2) that plaintiffs have judgment against Charles Basilides in the sum of $1,083.16 for their share of the rents and rental use of the property, and that the judgment was a lien upon the interest of Charles Basilides in the property; (3) that the house and lot at 5203 First Avenue Northwest be sold in the manner provided by law relative to partition and sale of real estate; (4) that the property [19 Wn.2d 393] at 326 West Forty-first street be not sold; (5) that plaintiffs be allowed an attorney's fee of $500 and that a like sum be allowed counsel for defendants. Both amounts were made a lien on the proceeds of the sale of the property at 5203 First Avenue Northwest.

The decree further provided for the appointment of a referee to sell the First avenue property. Defendant Charles Basilides appealed.

The assignments of error are in holding that possession of appellant was never at any time adverse to respondents and requiring appellant to make an accounting; in not allowing appellant a lien on the property for the taxes and assessments paid and improvements made; in ordering an accounting for rents and profits received more than three years prior to the beginning of the action; in not dismissing the action because of laches, bad faith and lack of equity on the part of respondents; and in giving respondents a lien on the interest of appellant in the property.

The facts are these:

In the year 1901 appellant married Alice King in the city of Chicago. At the time of her marriage to appellant, Mrs. King had two children by a former marriage, Alice, now Alice McKnight, and Fred W. King. Defendant Ruth Allison is the child of appellant and his wife Alice. During the year 1907 the family moved to Seattle, where appellant engaged in business and acquired two pieces of real property, one known in the evidence as the 'Little House,' located at 326 West Forty-first street, and the other, known as the 'Big House,' located at 5203 First Avenue Northwest, both in the city of Seattle.

Alice Basilides died intestate, November 20, 1929, and the estate has never been probated. Appellant has been in possession of both pieces of property since the death of his wife, and has paid all the taxes and assessments levied against the property. In addition, he made certain improvements upon the real estate. He rented the 'Little House' and occupied the 'Big House' as his home. During the time from the death of his wife Alice until a few days prior to the beginning of this action, appellant never made any claim to respondents that he was the sole owner of the property, nor did respondents make any claim to the property during the same period of time.

The assignments of error present three questions for consideration:

First. Did appellant obtain title to the real estate by adverse possession?

Second. Should appellant be compelled to make an accounting of income from the property?

Third. Were respondents entitled to a lien upon appellant's interest in the property for the amount found due after accounting?

We will discuss the questions in the order set out above.

Appellant contends that the evidence shows him to have been in actual, uninterrupted, open, notorious, hostile and exclusive possession of the property under claim of right since November 20, 1929, and for that reason he has acquired title by adverse possession.

The general rule relative to securing title to property owned in common by adverse possession is found in the following comprehensive statements:

'Since acts of ownership which, in case of a stranger, would be deemed adverse and per se a disseisin, are, in cases of tenancies in common, susceptible of explanation consistently with the real title, they are not necessarily inconsistent with the unity of possession existing under a cotenancy. For this reason, whether the acts of ownership will be such as to break and dissolve the unity of possession, constitute an adverse possession as against the cotenants, and amount to a disseisin, depends upon the intent with which they are done, and upon their notoriety and essential character. Accordingly, it is a general rule that the entry of a cotenant on the common property, even if he takes the rents, cultivates the land, or cuts the wood and timber without accounting or paying for any share of it, will not ordinarily be considered as adverse to his cotenants and an ouster of them. Rather, such acts will be construed in support of the common title. Mere exclusive possession, accompanied by no act that can amount to an ouster of the other cotenant, or give notice to him that such possession is adverse, will not be held to amount to a disseisin of such cotenant. Mere intention, unannounced, is not sufficient to support a claim of adverse title. Although the exclusive taking of the profits by one tenant in common for a long period of time, with the knowledge of the other cotenant and without any claim of right by him, may raise a natural presumption of ouster upon which the jury may find the fact to exist, if it satisfies their minds, yet the law will not, from this fact, merely raise a presumption of such ouster.

'Generally, a cotenant's sole possession of the land becomes adverse to his fellow tenants by his repudiation or disavowal of the relation of cotenancy between them, and any act or conduct signifying his intention to hold, occupy, and enjoy the premises exclusively, and of which the tenant out of possession has knowledge, or of which he has sufficient information to put him upon inquiry, amounts to an ouster of such tenant. In other words, where one cotenant occupies the common property notoriously as the sole owner, using it exclusively, improving it and taking to his own use the rents and profits, or otherwise exercising over it such acts of ownership as manifest unequivocally an intention to ignore and repudiate any right in his cotenants, such occupation or acts and claim of sole ownership will amount to a disseisin of his cotenants, and his possession will be regarded as adverse from the time they have knowledge of such acts or occupation and of the claim of exclusive ownership. A writing is unnecessary, but the claimant must show a definite and continuous assertion of an adverse right by overt acts of unequivocal character clearly indicating an assertion of ownership of the premises to the exclusion of the right of the other cotenants.' 1 Am.Jur., Adverse Possession, § 54.

'It is a general rule that an entry upon real property by a tenant in common claiming an adverse possession against his cotenants can never become the foundation of such a title until such cotenants first have had actual knowledge of the repudiation of their rights. The law deems the possession to be amicable until the tenant out of possession has in some way been notified that it has become hostile.' 1 Am.Jur., Adverse Possession, § 56.

In the following cases this court has adhered to the rule of law just quoted.

In Cox v. Tompkinson, 39 Wash. 70, 80 P. 1005, 1006 Hiram Muzzy made a homestead entry on land near Spokane Falls in 1880, and lived on the property for some time with his family. His wife died, January 6, 1886, leaving as heir one child. Immediately after receiving his final receiver's receipt, Muzzy platted a part of the land into streets, alleys, lots and blocks as an addition to the city of Spokane Falls. The streets and alleys were dedicated to the public use. Thereafter he placed a mortgage upon a portion of the lots and blocks. The mortgage was thereafter foreclosed and the property purchased by the mortgagee, who went into possession at once and thereafter paid taxes and assessments. Many of the lots were sold and improved for business and residential purposes. The streets were used and improved by the city. The daughter of Muzzy and wife lived with her father until 1887, and thereafter for many years lived near the property and was acquainted with the actions of her father and those who succeeded him as owners of the property. In upholding a decree establishing title by an adverse possession in the purchaser at the foreclosure sale, this court said: 'As the possession of land, held by a common title by one tenant in common does not imply hostility, as does possession by a stranger to the title, stronger evidence is required to show an adverse holding by a tenant in common than by a stranger, but the evidence need not differ in kind. Actual verbal or written notice is not necessary to...