Price v. Hall
| Decision Date | 20 February 1895 |
| Docket Number | 17,165 |
| Parties | Price et al. v. Hall |
| Court | Indiana Supreme Court |
From the Clinton Circuit Court.
The judgment is reversed, with instructions to overrule the demurrer to said reply.
S. O Bayless and C. G. Guenther, for appellants.
O. E Brumbaugh and J. Combs, for appellee.
This action was by the appellee, seeking to quiet the title to the lands in question. The issue in this court is as to the sufficiency of the appellants' reply to appellee's answer to a cross-complaint in which the appellants claimed an undivided one-fifth interest in said lands as tenants in common with the appellee, and as to the only heirs of Sarah Price, deceased, who held as a daughter and heir of Thomas Ramsey, deceased.
The answer to this cross-complaint was in two paragraphs, each setting up the appellee's ownership by purchase, the continuous and exclusive use and occupancy, under claim and color of title, with the knowledge of the appellants and without claim of title or interest on their part.
The first paragraph alleged the existence of such facts for fifteen years, and the second paragraph for twenty years before the bringing of this suit. The reply to this answer, and which the lower court held bad upon demurrer, admitted the appellee's occupancy, as alleged in the answer, excepting that it was averred that such occupancy was without the knowledge and consent of the appellants. It was further alleged that the appellee and her grantors recognized the rights and interests of the appellants, at the times of the several conveyances under which she and her grantors claim title, by estimating the value of such interests and executing promissory notes in the amount of such value and "for the purpose of protecting and preserving and continuing the cross-complainant's interests and protecting the parties purchasing and holding said real estate, and for the further purpose of protecting the parties giving warranty deeds in the sale and transfer of said real estate."
It is conceded by counsel for the appellee that the possession of one tenant in common is ordinarily the possession of all, and that mere lapse of time under such occupancy does not ripen into title by adverse possession. But it is insisted that a conveyance purporting to include the entire estate, by such occupying tenant in common, and a subsequent occupancy by the grantee for the period of limitation prescribed by statute, in the absence of a recognition of the claim of the tenant out of the actual occupancy, constitutes an ouster of, and title by adverse possession against, such tenant.
It is a general rule that a conveyance by one cotenant purporting to include the entire land and estate, where possession and claim of title are taken and continued for the period of limitation, is regarded as constituting an ouster of the other tenants, and as creating a bar to recovery by them. Unger v. Mooney, 63 Cal. 586; Long v. Stapp, 49 Mo. 506; Hinkley v. Greene, 52 Ill. 223; Kinney v. Slattery, 51 Iowa 353, 1 N.W. 626; Sands v. Davis, 40 Mich. 14; Higbee v. Rice, 5 Mass. 344; Hodges v. Eddy, 38 Vt. 327; Forest v. Jackson, 56 N.H. 357; Clark v. Vaughan, 3 Conn. 191; Bogardus v. Trinity Church, 4 Paige (N. Y.), 178; Foulke v. Bond, 41 N.J.L. 527; Dikeman v. Parrish, 6 Pa. 210; Caperton v. Gregory, 52 Va. 505, 11 Gratt. 505; Covington v. Stewart, 77 N.C. 148; Gray v. Bates, 34 S.C. L. 498, 3 Strob. (S. C.) 498; 1 Am. and Eng. Encyc. of Law, p. 234, and numerous cases there cited. See also Nelson v. Davis, 35 Ind. 474; English v. Powell, 119 Ind. 93, 21 N.E. 458, and cases there cited, where the same general rule has been accepted and adopted in Indiana.
Has this general rule an exception and does that exception exist in the case in hand? If such exception exists, it must be found in another general and equally well settled rule, namely: that in the case of cotenants, an ouster is not effected unless the possession, asserted as adverse, has been taken and continued with the intent to oust the other tenants. Maple v. Stevenson, 122 Ind. 368, 23 N.E. 854; Peter v. Stephens, 11 Mont. 115, 27 P. 403, s. c. 28 Am. St. Rep. 448, note, p. 451; Evans v. Templeton, 69 Tex. 375, 6 S.W. 843; Flynn v. Lee, 31 W.Va. 487, 7 S.E. 430; McDonald v. Fox, 20 Nev. 364, 22 P. 234; LaFrombois v. Jackson, 8 Cow. 589; Miller v. Myers, 46 Cal. 535; Culver v. Rhodes, 87 N.Y. 348; Newell v. Woodruff, 30 Conn. 492; Cummings v. Wyman, 10 Mass. 464.
In 1 Am. & Eng. Encyc. of Law, p. 227, it is said: "An adverse possession depends upon the intention with which it was taken and held," citing many cases. In the same work, vol. 17, p. 289, it is again said. "The intention guides the entry and fixes its character." In the same valued work, vol. 1, p. 233, note 2, it is said ...
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