Oldig v. Fisk

• Decision Date: 21 December 1897
• Docket Number: 7631
• Citation: 73 N.W. 661,53 Neb. 156
• Parties: HERMAN OLDIG v. JOHN L. FISK
• Court: Nebraska Supreme Court

73 N.W. 661

53 Neb. 156

HERMAN OLDIG v. JOHN L. FISK

No. 7631

Supreme Court of Nebraska

December 21, 1897

ERROR from the district court of Douglas county. Tried below before AMBROSE, J. Reversed.

REVERSED AND REMANDED.

C Hollenbeck and Frick & Dolezal, for plaintiff in error.

N. H Tunnicliff and Elmer E. Thomas, contra.

IRVINE C. RAGAN, C., dissenting.

OPINION

IRVINE, C.

This action was ejectment by Fisk against Oldig for eighty acres of land in Douglas county. At the close of the evidence, by agreement of the parties, the jury was discharged and the cause submitted to the court, which entered judgment for the plaintiff on special findings of fact. With regard to the point chiefly controverted these findings are as strongly in favor of the defendant in error as the evidence warrants, and we accept them as affording a proper basis for the examination of the case. From them it appears that in 1857 the land in controversy was pre-empted by Fisk, and a patent was thereafter issued to him. In 1871 Wilson Reynolds obtained a tax deed to the land and thereafter received other tax deeds. Oldig claims under Reynolds. Possession was taken under the tax deeds and the court found that the defendant, Oldig, and his grantors had held adverse possession for more than ten years prior to the beginning of the action, except for the fact that in 1889, and before the bar of the statute had become complete, Reynolds, being then in possession, employed a man named Price to search for the patentee and purchase from him; that Price produced a deed purporting to be executed by Fisk, and Reynolds paid Price $ 900 therefor. In so doing Price believed that he was dealing with Fisk and acquiring his title to the premises. While it is not so specially found, it was clearly proved that the deed obtained by Price was a forgery.

Defendant in error contends that the defense of adverse possession was not open to the plaintiff in error, for want of a sufficient plea. We shall not examine into the sufficiency of the special plea interposed, because we think that evidence of adverse possession was admissible under the general denial of Fisk's title. True, the statute of limitations, as a general rule, must be pleaded to be made available, but there are two reasons why that rule is not applicable to the defense of adverse possession in an action of ejectment. The first is that sections 626 and 627 of the Code provide specially for the pleadings in actions of ejectment, and as to the answer it is enacted that it shall be sufficient to deny generally the title alleged in the petition. Under such a denial it has always been here held that the defendant may show any facts negativing the plaintiff's right of possession. (Franklin v. Kelley, 2 Neb. 79; Dale v. Hunneman, 12 Neb. 221, 10 N.W. 711; Staley v. Housel, 35 Neb. 160, 52 N.W. 888; Wanser v. Lucas, 44 Neb. 759, 62 N.W. 1108.) The other reason is that adverse possession is more than a defense of the statute of limitations. Such possession, for the statutory period, not only bars the remedy, but it vests in the occupant an absolute title to the land. In support of that rule we have a long and unbroken line of decisions, beginning at least as early as Gatling v. Lane, 17 Neb. 77, 22 N.W. 227, and extending down to Fink v. Dawson, 52 Neb. 647, 72 N.W. 1037. Proof of adverse possession goes therefore directly to disprove plaintiff's title, and is admissible under the general issue. (Fink v. Dawson, supra; Hogan v. Kurtz, 94 U.S. 773; Kyser v. Cannon, 29 Ohio St. 359; Donahue v. Thompson, 60 Wis. 500, 19 N.W. 520; Miller v. Beck, 68 Mich. 76, 35 N.W. 899; Stocker v. Green, 94 Mo. 280, 7 S.W. 279; Trowbridge v. Royce, 1 Root 50; Wade v. Doyle, 17 Fla. 522.) What has been said is not opposed to the case of Alexander v. Meyers, 33 Neb. 773, 51 N.W. 140, which was a suit to foreclose a lien and, therefore, did not present a similar question.

The record then presents, and succinctly presents, the question whether an attempt by one in the adverse possession of land, and before the statutory period has expired, to purchase from the true owner, operates to divest his possession of its adverse character. Title by adverse possession is acquired by ten years' open, continuous, exclusive occupancy under claim of ownership. Whatever may be the law elsewhere, here that claim need not be well founded in law or in fact, it need not be under a bona fide belief that it is well founded, it need not even be under color of title. ( Omaha & Florence Land & Trust Co. v. Hansen, 32 Neb. 449, 49 N.W. 456; Lantry v. Wolff, 49 Neb. 374, 68 N.W. 494; Gatling v. Lane, 17 Neb. 80, 22 N.W. 453.) Accordingly it has been held that one in adverse possession does not impair his right to rely upon the statute, by purchasing the land at tax sale and taking and recording a tax deed, and that such acts do not create a break in the running of the statute. (Griffith v. Smith, 27 Neb. 47, 42 N.W. 749.) This rule was followed in Omaha & Florence Loan & Trust Co. v. Hansen, supra, the court saying: "Neither does the purchase of a tax deed break the continuity of possession. (Griffith v. Smith, 27 Neb. 47, 42 N.W. 749.) Cases may be found which hold that the purchase of such title breaks the continuity. We cannot agree, however, that such is the case. A party in possession of land as owner certainly has a right to protect that possession by the purchase of any outstanding claim or lien against the property. There is not thereby any break in the possession, nor does the adverse occupant rely upon his purchased title in preference to the one which he previously possessed. He joins the two together and possesses whatever title both may give him." These decisions logically, if they do not in direct terms, control the present case. They have stood unquestioned for some years and may justly be regarded as founding a rule of property. They certainly should not be departed from in the absence of the most convincing reason, or controlling necessity.

Rather than there being such reason, we think that principle and precedent both favor the rule expressed in the cases cited. While there is some conflict of authority it is to be observed that the cases holding that the benefit of the statute is lost by the purchase or attempted purchase of an outstanding title, are uniformly based on the rule that any act recognizing a superior title in another, at least before the bar of the statute has become complete, defeats its operation. This court has several times enforced that rule as in Hull v. Chicago, B. & Q. R. Co., 21 Neb. 371, 32 N.W. 162, where a railroad company sought the benefit of the statute after having, while in possession, but within ten years, instituted condemnation proceedings against the true owner, thus by a solemn admission of record acknowledging his title. In Roggencamp v. Converse, 15 Neb. 105, 17 N.W. 361, the occupant, claiming the protection of the statute, had taken a lease from the true owner and thereby not only recognized his title but estopped himself from denying it. The general rule cannot be doubted. The error is not in declaring that rule, but in applying it to the facts before us. A vendee is not estopped to deny his vendor's title. In the purchase of an outstanding title there is nothing inconsistent with the former claim of ownership. It is generally conceded that one may purchase an outstanding title to "buy one's peace" or prevent threatened litigation. There is no room to distinguish in this behalf, between litigation threatened by word of mouth, and litigation threatened by the fact that the title is outstanding,--a constant menace from the very fact of its existence. As in adverse possession the motive of the occupant is immaterial, and the claim of ownership need have no legal foundation, there is no reason why one may not at any time buy in an outstanding title and protect oneself against the probability of disastrous litigation. The fact that one believes the outstanding title to be superior so long as he does not yield thereto cannot affect the question, because the character of...