Salvatore Bitont] v. Kauffeld Company.

• Citation: 94 W.Va. 752
• Decision Date: 30 October 1923
• Docket Number: No. 4887.,4887.
• Court: West Virginia Supreme Court
• Parties: Salvatore Bitont] v. Kauffeld Company.

94 W.Va. 752

Salvatore Bitont]

v. Kauffeld Company.

No. 4887.

Supreme Court of Appeals of West Virginia.

Submitted October 23, 1923.

Decided October 30. 1923.

1. Adverse Possession Essential Elements Stated. Adverse possession of land to be effective must be hostile, adverse, actual, visible, notorious, exclusive, and continuous under claim or color of title for the statutory period of time, (p. 756).

2. Same Offer to Purchase from True Owner Breaks Hostile Continuous Possession.

If during the running of the statute, the person in adverse possession purchases or offers to purchase the title from the true and rightful owner, and the facts and circumstances or the contract or offer, show that the offer was made to purchase the true title from the true owner, knowing him to be such, and not to buy an outstanding or adverse claim, in order to quiet the possession or avoid litigation, the character of the adverse possession then ceases, and the running of the statute prior thereto is stopped. Thereafter the adverse possession to became effective must continue for the full statutory period from the time of such offer. (p. 756).

3. Same Intention of Adverse Holder in Offer to Purchase Title of Owner Governs, as to Whether Title Sought Recognized as Superior.

It will not be conclusively presumed, because the adverse holder has made such offer, that he thereby recognized the title sought to be purchased as superior to his own. The intention of the offerer governs, and that intention must be ascertained from all the facts and circumstances surrounding the parties at the time the offer is made. (p. 757).

4. Same Offer of Adverse Holder to Purchase of True Owner Held Not Indicative of Recognition of Superior Title of Seller.

Where the offer to purchase at a stated price is from such adverse holder at a public sale made by a trustee in bankruptcy of the true owner, and such offer is for a parcel of land which includes a small portion of the land held adversely by him on which he had valuable improvements, as well as another like small portion not claimed or held by him, such fact is strongly indicative of the intention of the person making the offer not to recognize the superior title of the seller; and especially so where after such offer the adverse holder constantly asserts his own title and adversary possession. (p. 758).

Error to Circuit Court, Monongalia County.

Action by Salvatore Bitonti against the Kauffeld Company. Judgment for plaintiff, and defendant brings error.

Reversed, and new trial awarded.

E. M. Everly and Chas. T. Herd, for plaintiff in error.

Lazzelle & Glasscock and Clarence Roby, for defendant in error.

Lively, Judge:

Kauffeld Company, defendant below, sued out this writ of error to review a judgment in ejectment rendered the 15th day of February, 1923, by the lower court, sitting without a jury.

There is no conflict of facts. Both parties claim title from. Wm, T. Boyers who owned the land in controversy in 1897. In 1901 he conveyed a portion of his tract to Empire Brick Company, and in 1904 conveyed the remainder to Keystone Industrial Company. The latter company laid out its land, or a portion thereof into lots, streets and alleys, recorded a map thereof and sold the lots to various purchasers including Garrison McClure, who was deeded lots 8, 9 and 10 in Block No. 3 in the year 1904. He took possession, erected valuable houses and improvements thereon, and in 1916 conveyed the same to defendant Kauffeld Company, which has been in possession since the date of its deed.

It appears that Keystone Industrial Company, in laying out its land into lots, streets and alleys, went beyond the boundary of its land and included in its map a portion of the Brick Company's land; and the title of the Brick Company included a strip 17 feet wide and 125 feet long included within lots 8, 9 and 10 of the block purchased and held by McClure and his successor in title, Kauffeld Company. The strip 17x125 fet claimed by each litigant is the rear of these lots where they abut on an alley. The title of the Brick Company included the alley at the rear of these lots, which alley is 16 feet wide. There seems to be no question of the title of the Brick Company to this strip off of the rear of these lots, and the alley, together making a parcel of land 33x125 feet. In 1912 the Brick Company's land was sold by a trustee in bankruptcy and purchased by a predecessor in title of plaintiff, Salvatore Bitonti, who obtained a special warranty deed to this parcel 33x125 feet in 1921, and instituted this action of ejectment to obtain possession.

The defense interposed was adverse possession under the deed of 1904 for a period of more than ten years. Possession with valuable improvements was unquestioned; but plaintiff asserts that it was not hostile and continuous for the statutory period, because for this: that at the sale by the trustee in bankruptcy in 1912 the parcel of land 33x125 feet, as a separate tract, was offered for sale to the highest bidder and McClure offered $50 therefor and the lot was knocked down to him at that price by the auctioneer; but immediately afterwards the entire land of the Brick Company was offered by the trustee and purchased by Barrickmans, predecessors in title to plaintiff, their offer for the whole being accepted, thus vacating the sale of the separate parcel to McClure. Tersely stated, the claim of plaintiff is that this offer of McClure to purchase the title of the true owner of the 33x125 feet parcel in dispute at the price of $50, which offer was accepted, but afterwards vacated by a sale of the whole to another person, defeats the running of the statute; and in order for defendant to successfully assert adversary possession he must show that he has held adversely for ten years after the date of his offer to purchase the true title. This proposition of law defendant stoutly controverts, and it says the court erred in not striking out the evidence of the offer of McClure to purchase at the trustee s sale. Thus the issue was raised. It was decided by the lower court in favor of plaintiff.

A preliminary point in procedure, unimportant to the issue, is raised by defendant, The declaration in ejectment was served, and filed at February rules, 1922. At the following April rules defendant attempted to file a "plea in abatement, '' The clerk refused to receive and file it; but it was lodged in his office as tendered. At the April term the court refused to permit the plea to be filed as of April rules, and rejected the plea as then tendered. The court sustained a demurrer to the notice and declaration in ejectment for some apparent defect and permitted the amendment at bar by the insertion of the necessary words; and the plea in abatement was again tendered and refused. The plea is to the effect that defendant disclaims ownership or possession of that portion of the land described in the declaration which is laid down on the map of Star City as a 16-foot alley, being 16x125 feet of the land claimed by plaintiff as a lot 33x125 feet; that this alley was owned and possessed by the municipal corporation of Star City, giving its address, and therefore the municipal corporation was a necessary party. Plaintiff says the plea was rightly rejected because tendered at April rules after there had been a conditional office judgment which was confirmed. Defendant answers that a plea in abatement, unless it is a plea to the jurisdiction, is not governed by sec. 16, chap. 125 of the Code, Wch says that a plea in abatement setting up want of jurisdiction shall not be allowed to be filed later than the next succeeding rules after a conditional judgment or decree nisi is entered. Defendant, therefore, says the court should have received the plea setting up want of proper parties defendant, at any time tendered before the trial. But was Star City, the alleged owner and possessor of the alley, a necessary party to the controversy between these parties? The issue was narrowed down to the strip off of the rear of plaintiff's lots 8, 9 and 10 in Block 3, which was 17x125 feet long. Defendant did not claim the alley either by deed or possession. We do not see that the municipal corporation was a necessary party; and we think the plea, as a plea for want of a necessary co-defendant, was properly re- jected whenever offered. We note, however, that the judgment against defendant is for all of the land described in plaintiff's declaration. This judgment is not binding upon the municipality, if it should see cause to assert its title or claim to the 16-foot alley. The plea tendered and rejected contained a disclaimer of the alley; and we think was good as a disclaimer and should have been permitted to be filed as a disclaimer alone. Brief of counsel for defendant asserts that a disclaimer of the alley was filed before the case went to trial; but we find none in the record. But the court, which sat without a jury, evidently considered such disclaimer in, because evidence was introduced without objection by defendant showing that he made no claim to the alley and that it was used by the general public as an alley.

The vital question is: whether McClure's bid for the parcel 33x125 feet at the sale of the trustee in bankruptcy at the price of $50, in 1912, is such a recognition of plaintiff's title as will defeat his claim of adverse possession and stop the running of the 10-year statute. It is well settled that possession in order to be adverse must be hostile, actual, visible, notorious, exclusive, continuous, and under color or claim of title. Heavner v. Morgan, 41 W. Va. 428. Defendant's possession...