Schoonover v. Tyner

• Decision Date: 09 December 1905
• Docket Number: 14,378
• Citation: 72 Kan. 475,84 P. 124
• Parties: RODERICK SCHOONOVER v. EDGAR A. TYNER et al
• Court: Kansas Supreme Court

84 P. 124

72 Kan. 475

RODERICK SCHOONOVER v. EDGAR A. TYNER et al

No. 14,378

Supreme Court of Kansas

December 9, 1905

Decided. July, 1905.

Error from Elk district court; GRANVILLE P. AIKMAN, judge.

STATEMENT.

THIS was an action in ejectment for the recovery of the undivided one-sixth interest in the southwest quarter of section 28 township 28 south, range 13 east, in the county of Elk. Judgment having been rendered against the plaintiff, he prosecutes this proceeding.

The substantial facts upon which the rights of the parties must be determined are as follow: George W. Knox was a widower and the father of six children--George W., jr., Sarah, Columbus Margaret, Emaline, and Jesse M. Clarissa Schoonover was a widow and the mother of three children--Roderick, Louis, and Frances. George W. Knox and Clarissa Schoonover were married and Joanna Knox was the issue of this marriage. George W Knox at his death, on January 1, 1873, was the owner of the land in controversy. The heirs of George W. Knox were his widow, the six children by a former wife, and Joanna. His widow, Clarissa, died December 8, 1873. The heirs of Clarissa Knox were her three children by a former husband, and Joanna Knox.

Some time after the death of Clarissa Knox, James M. Spurgeon and his wife, Sarah Spurgeon, nee Knox, went into possession of the land, and in 1875 Spurgeon commenced to buy the interests of the different heirs. On October 11, 1875, he purchased from G. W. Knox, jr., and his wife all of their interests; on November 27, 1875, he purchased from Louis Schoonover, one of the heirs of Clarissa Schoonover and a brother to the plaintiff, his interest; on January 4, 1876, he purchased the interests of Columbus Knox and his wife; and on December 4, 1876, he purchased the interests of Margaret Tyler, nee Knox, and her husband.

James M. Spurgeon died in 1877, leaving his widow, Sarah Spurgeon, and three children--John, Charles, and Joseph. Subsequently the widow married D. D. Knight.

On December 1, 1879, Joseph Martin purchased the interest of Emaline Knox; on May 22, 1880, that of Sarah J. Knight, nee Knox, the widow of James M. Spurgeon; on August 4, 1887, the interest of Joanna Knox in the estate of George W. Knox, but not her interest in the estate of her mother, Clarissa Knox, deceased; and on December 10, 1888, the interests of Jesse M. Knox and his wife. None of these deeds purported to convey anything but the interests of the grantors in the estate of George W. Knox. In 1880 Joseph Martin went into possession of the entire tract of land, and continued in such possession until April, 1894.

In 1894 Joseph Martin and the Spurgeon heirs divided the land between themselves, Martin taking the west 118 acres and the Spurgeon heirs the east 42 acres. Joseph Martin and his family continued to occupy the west 118 acres until his death, in 1898. Martin left a widow and seven children. A few years later the widow died. On the 22d of January, 1901, the Martin heirs conveyed by warranty deed the west 118 acres to the defendant Edgar A. Tyner, and the Spurgeon heirs conveyed the east 42 acres to him. Tyner went into immediate possession, and still continues therein.

Soon after the marriage of his mother to Knox the plaintiff left the county and did not return, and was not heard from until a short time prior to the commencement of this action, a period of about thirty years, during which time he made no claim to any interest in the land.

The contention of the defendants, the Knox, Spurgeon and Martin heirs, and the Tyners, is that they and those through whom they hold had been in the open, notorious, exclusive and adverse possession, claiming the title of the entire estate, for more than fifteen years before the commencement of this action; that, therefore, the plaintiff's right to recover, if he ever had any, is barred by the statute of limitations. This is the sole question in this case.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. TITLE AND OWNERSHIP--Adverse Possession by a Tenant in Common. The law presumes the possession of a tenant in common to be the possession of all cotenants, and before such possession can become adverse there must be an actual ouster of all cotenants.

2. TITLE AND OWNERSHIP--Inconsistent Positions Toward Cotenants by One in Possession. A tenant in common in possession cannot occupy the opposing positions of recognizing and purchasing the interests of some of his cotenants, and at the same time claim that he has ousted the other cotenants.

3. TITLE AND OWNERSHIP--Condition Precedent -- Ouster -- Adverse Possession. Before a tenant in common can rely on an ouster of his cotenants he must claim the entire title to the land in himself, and must hold the exclusive and adverse possession against every other person.

George W. Day, and A. T. Ayres, for plaintiff in error.

T. J. Hudson, for defendants in error.

GREENE J. All the Justices concurring.

OPINION

GREENE, J.

It is not denied that when George W. Knox died an undivided one-half of this land immediately descended to his children and the other undivided one-half to his widow. These heirs then became tenants in common of the land. At the death of the widow her undivided one-half descended to her heirs, who were Roderick (the plaintiff), Louis C. and Frances Schoonover, and Joanna Knox, each succeeding to an undivided one-fourth of the widow's portion and becoming tenants in common with the heirs of George W. Knox of the entire estate.

It is elementary that the possession of one of several tenants in common is the possession of all, and where a tenant in common, either in or out of possession, transfers his interest in the estate to a stranger the grantee becomes a tenant in common with all the others. (17 A. & E. Encycl of L. 662, 663; Gibbs, Administrator, v. Smith, Executor, 66 Mass. 393; Battel v. Smith, 80 Mass. 497; Gratz v. Land & River Imp. Co., 82 F. 381, 27 C. C. A. 305, 40 L. R. A. 393; Wallace v. Miller, 52...