Nicholas v. Cousins
| Decision Date | 21 October 1969 |
| Docket Number | No. 23--40255--III,23--40255--III |
| Parties | Pershing W. NICHOLAS and Anna T. Nicholas, his wife, Respondents, v. Alberta COUSINS and Harold Nicholas, Appellants, Old National Bank of Washington (formerly Old National Bank and Union Trust Company) as trustee under the Last Will of B. F. Nicholas, deceased, Elberton Milling and Power Company, a Corporation, Oregon-Washington Railroad and Navigation Company, a Corporation, and all other parties unknown, claiming any right, title, estate, lien, or interest in the real estate described in the Complaint herein, Defendants. . III |
| Court | Washington Court of Appeals |
J. D. McMannis, Colfax, for appellants.
Hickman & Faris, Lawrence Hickman, Colfax, for respondents.
In an action to quiet title, the trial court granted motion for summary judgment and entered a decree quieting plaintiffs' title. Defendants Cousins and Nicholas appeal.
The parties agree there is no conflicting evidence as to the material facts. The court has only to apply the law to those facts.
B. F. and Lulu Z. Nicholas had three children: Alberta Cousins and Harold Nicholas, the oldest of the three, hereafter referred to as though they were the only defendants; and Percy W. Nicholas, the youngest child, hereafter referred to as though he was the sole plaintiff.
B. F. Nicholas was in the business of purchasing ailing retail stores, operating them for a time, increasing their ability to produce revenue and then selling them. Defendant Harold Nicholas assisted him. During the time of the exchange of deeds, Infra, this business, because of the economic depression of that era, became onerous. The nature of the business caused the Nicholases to live in various parts of Eastern Washington.
Prior to October 22, 1931, B. F. and Lulu Z. Nicholas acquired property located in Whitman County, Washington, and here in issue. On October 22, 1931, they deeded that property to a brother of B. F. Nicholas, one George Nicholas, a bachelor. This deed was recorded November 5, 1931, in Whitman County. On October 31, 1931, George Nicholas, by quitclaim deed, conveyed the property to Lulu Z. Nicholas without stating whether or not it was to be her separate property. This deed was not recorded until October 21, 1932, some seven months after the death of B. F. Nicholas, which occurred on March 7, 1932.
The probate of the B. F. Nicholas estate began shortly after his death, but the real estate in question was not inventoried. His will made specific bequests to his wife Lulu, and placed the residue of his estate in trust for her benefit and that of the children. Under the terms of the testamentary trust, Lulu had the power to invade the corpus. The trust was to terminate within a reasonable time following her death or remarriage and the residue, if any, was to be distributed among the three children--share and share alike. Prior to 1939 the trust was exhausted and terminated. After the death of B. F. Nicholas, Lulu Z. Nicholas treated the instant property as her separate property.
On March 11, 1951, Lulu Z. Nicholas died, leaving a will in which she proclaimed her children, the defendants, had been taken care of during her lifetime and life all of her property to her youngest son, the plaintiff. Her will was probated, the real estate in question inventoried in her estate and subsequently distributed to plaintiff by decree of distribution. Affidavits in the record reflect that during the probate of Lulu's will the question of her competency was raised by defendants. As a result of negotiations on this issue, plaintiff paid $6,000 to defendants. No matters related to this lawsuit were raised.
After receiving the property by decree of distribution, plaintiff took possession. He took all rents, issues and profits from the property without accounting to anyone and paid all taxes from the time of possession. All parties agree they were unaware of any possible interests of the defendants in the property until a title company refused to insure the title on a proposed transaction by plaintiff.
Plaintiff brings this action, claiming title by adverse possession under the provisions of RCW 7.28.070. Defendants claim they became cotenants with the plaintiff upon the death of B. F. Nicholas and assert that plaintiff cannot claim adverse possession as against them. To the contrary, plaintiff claims the property was the separate property of Lulu Z. Nicholas, was not included in the trust and as such was not distributed to any of the parties, nor the mother; hence, cotenancy did not exist.
It is unnecessary to delineate the rights under the trust. We shall assume the mother and children become tenants in common upon the death of B. F. Nicholas.
RCW 7.28.070 states:
Every person in actual, open and notorious possession of lands or tenements under claim and color of title, made in good faith, and who shall for seven successive years continue in possession, and shall also during said time pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tenements, to the extent and according to the purport of his or her paper title. All persons holding under such possession, by purchase, device or descent, before said seven years shall have expired, and who shall continue such possession and continue to pay the taxes as aforesaid, so as to complete the possession and payment of taxes for the term aforesaid, shall be entitled to the benefit of this section.
One of defendants' claims of error is that plaintiff did not have color of title under the decree of distribution because such a decree cannot create a title where none previously existed. Mezere v. Flory, 26 Wash.2d 274, 173 P.2d 776 (1946); Smith v. McLaren, 58 Wash.2d 907, 365 P.2d 331 (1961). However, McCoy v. Lowrie, 42 Wash.2d 24, 29, 253 P.2d 415, 418 (1953) defining color of title under RCW 7.28.080, which concerns the adverse possession of vacant and occupied land, states:
An instrument which actually passes title does not provide color of title, as specified in RCW 7.28.080, because the term 'color of title', as we have defined it, means 'that which is a semblance or appearance of title, but is not title in fact nor in law', Bassett v. Spokane, 1917, 98 Wash. 654, 168 P. 478, 479, and implies that a valid title has not passed. (Citing cases.)
Schmitz v. Klee, 103 Wash. 9, 16, 173 P. 1026, 1028 (1918) quoted with approval in Scramlin v. Warner, 69 Wash.2d 6, 10, 416 P.2d 699 (1966) states:
An instrument, in order to operate as color of title, must purport to convey title to the grantee, or to those with whom he is in privity, and must describe and purport to convey the land in controversy; it cannot be aided by parol evidence.
See also 3 Am.Jur.2d 270, Adverse Possession, § 178; 82 A.L.R.2d 266, § 63.
The will of Lulu Z. Nicholas having been admitted to probate, an inventory filed containing a description of the instant property, and that property awarded to the plaintiff by decree of distribution, meets the test for color of title as required by RCW 7.28.070.
There is no question that the plaintiff has been in possession for seven successive years and during said time paid all taxes legally assessed upon the land.
Next, defendants raise the question of whether the possession of land can ripen to title against tenants in common who have no knowledge or notice of their ownership interest. As stated previously, none of the parties to this action were aware of the cotenancy relationship, which this court has assumed, until shortly before this suit was instituted.
The general rule, and presumption, is that the possession of one tenant in common is the possession of all cotenants and inures to the benefit of all. To establish title in one cotenant as against the others, by adverse possession, there must be such outward acts of exclusive ownership of such an unequivocal character as to impart notice to the cotenant that adverse possession is intended to be asserted against them. Possession of land held under 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 adverse possession 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 start the statute running in such a case. If there are outward acts of exclusive ownership by a tenant in possession, of such a nature as to preclude the idea of a joint ownership brought home to the cotenant, or so open and public a character that a reasonable man would discover it, it is sufficient. Fritch v. Fritch, 53 Wash.2d 496, 503, 335 P.2d 43 (1959); Church v. State, 65 Wash. 50, 55, 117 P. 711 (1911); Stone v. Marshall, 52 Wash. 375, 379, 100 P. 858 (1909); Cox v. Tompkinson, 39 Wash. 70, 75, 80 P. 1005 (1905); Mack v. Linge, 254 Iowa 963, 119 N.W.2d 897 (1963); Watkins v. Zeigler, 147 So.2d 435 (La.App.1962); West v Evans, 29 Cal.2d 414, 175 P.2d 219, 221 (1946); Livingston v. Livingston, 210 Ala. 420, 98 So. 281 (1923); 82 A.L.R.2d 5, et seq.
This general rule in Washington is enunciated only for the situation where both the cotenant in possession and the cotenants out of possession are aware or held to be aware of the cotenancy at the time of entry onto the land, or where the latter subsequently learns what is known by the former. Cox v. Tompkinson, Supra; Hicks v. Hicks, 69 Wash. 627, 125 P. 945 (1912); McKnight v. Basilides, 19 Wash.2d 391, 143 P.2d 307 (1943); Shull v. Shepherd, 63 Wash.2d 503, 387 P.2d 767 (1963). However, this is not the case at hand. As the trial court found, neither the plaintiff nor the the defendants were aware of the cotenancy relationship which this court has assumed existed among them.
In this case, adverse possession depends upon two elements: (1) the intent...
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...v. Basilides, 19 Wash.2d 391, 394--99, 143 P.2d 307 (1943); Fritch v. Fritch, 53 Wash.2d 496, 335 P.2d 43 (1959); Nicholas v. Cousins, 1 Wash.App. 133, 137, 459 P.2d 970 (1969). We examine the facts of this case in light of these general Silver Surprize contends the court erred when it dete......
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...be established by outward acts of "such an unequivocal character as to impart notice" of the intended ouster. Nicholas v. Cousins, 1 Wash.App. 133, 137, 459 P.2d 970, 974 (1969). Accord Fritch v. Fritch, 53 Wash.2d 496, 335 P.2d 43 (1959); Church v. State, 65 Wash. 50, 117 P. 711 (1911). We......
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Duncan v. Peterschick, No. 26162-0-III (Wash. App. 5/6/2008)
...possess their property in common, the standard of proof for ouster is more stringent than for adverse possession. Nicholas v. Cousins, 1 Wn. App. 133, 137, 459 P.2d 970 (1969). To prove ouster, a cotenant must offer clear and convincing evidence of unequivocal outward act of exclusive owner......
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Table of Cases
...142 Wash. 204, 252 P. 916 (1927): 7.8(2)(c) Newell v. Vervaeke, 189 Wash. 144, 63 P.2d 488 (1937): 22.3(4)(b)(i) Nicholas v. Cousins, 1 Wn.App. 133, 459 P.2d 970, review denied, 77 Wn.2d 961 (1969): 3.2(2) Nichols v. De Britz, 178 Wash. 375, 35 P.2d 29 (1934): 17.11(2), 20.14(2) Nichols v. ......
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Table of Cases
...Newell, In re Marriage of, 117 Wn. App. 711, 72 P.3d 1130 (2003) . . . . . . . . . . . . . . . . . . 28.03[4] Nicholas v. Cousins, 1 Wn. App. 133, 459 P.2d 970, review denied, 77 Wn.2d 961 (1969) . . . . . 69.05 Nichols Hills Bank v. McCool, 104 Wn.2d 78, 701 P.2d 1114 (1985) . . . . . . . ......
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§3.2 - Tenancy in Common
...manifests that intention in a way that brings home to the "ousted" tenant that exclusive ownership is being claimed. Nicholas v. Cousins, 1 Wn.App. 133, 459 P.2d 970, review denied, 77 Wn.2d 961 (1969). The conduct may be the same as that of an ordinary adverse possession, but it must be st......
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§69.05 Defenses
...by outward acts of 'such an unequivocal character as to impart notice' of the intended ouster." Id. at 254 (quoting Nicholas v. Cousins, 1 Wn. App. 133, 137, 459 P.2d 970, review denied, 77 Wn.2d 961...