Oldig v. Fisk

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

53 Neb. 156

73 N.W. 661

OLDIG

v.FISK.

Supreme Court of Nebraska.

Dec. 21, 1897.

Syllabus by the Court.

1. In ejectment, evidence to prove adverse possession is admissible under a general denial of plaintiff's title.

2. The purchase, or attempted purchase, of an outstanding title by one in adverse possession, and before the expiration of the statutory period, is not alone sufficient to break the continuity of possession, or devest it of its adverse character, although the occupant may believe that he is thereby acquiring the true title.

3. One who claims under a tax deed or by adverse possession does not, by causing to be recorded the patent from the United States to another, acknowledge title paramount in that other.

Error to district court, Douglas county; Ambrose, Judge.

Ejectment by John L. Fisk against Herman Oldig. There was judgment for plaintiff, and defendant brings error. Reversed.

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

N. H. Tunnicliff and Elmer E. Thomas, for defendant in error.

IRVINE, C.

This action was ejectment by Fisk against Oldig for 80 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 controversywas 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 10 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 might 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 devest his possession of its adverse character. Title by adverse possession is acquired by 10 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. 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 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 a 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. Railroad 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 10 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...