Schwab v. Wyss

• Decision Date: 09 July 1932
• Docket Number: 30654.
• Parties: SCHWAB et al. v. WYSS et al.
• Court: Kansas Supreme Court

12 P.2d 719

136 Kan. 54

SCHWAB et al. v. WYSS et al.

No. 30654.

Supreme Court of Kansas

July 9, 1932

Syllabus by the Court.

Brothers and sister inheriting property on landowner's death without will became tenants in common thereof notwithstanding erroneous advice given by probate judge (Rev St. 1923, 22--120, 22--128).

Tenant in common of real property has undivided title and right to possession.

Possession by one tenant in common cannot ripen into title by adverse possession as against cotenants until they have had actual notice of repudiation of their rights.

Notice by tenant in common in possession, of repudiation of rights of cotenants, may be inferred from situation of parties and acts and circumstances.

To warrant inference from circumstances that cotenants have actual notice of repudiation of their rights by tenant in common in possession, circumstances must necessarily imply notice of adverse claim.

Evidence held insufficient to sustain finding that cotenant in possession was holding adversely to other cotenants.

The evidence disclosed that the property in question passed to brothers and sister as tenant in common on death of property owner interstate, and that brother residing in this country who took possession of the property as his own under advice of the probate court, failed to inform his other brothers and sister, who were living in a foreign country, that there was any real property involved.

1. Each tenant in common of real property has an undivided title and the right to possession in each and every part of the property.

2. Possession of real property by one tenant in common is presumed to be for the benefit of himself and all his cotenants.

3. The general rule is that possession by one of several tenants in common cannot ripen into title by adverse possession as against his cotenants until they have had actual notice of his repudiation of their rights.

4. The notice mentioned in the preceding paragraph may be inferred from the situation of the parties and their relation to each other and the acts and circumstances attending the adverse possession, but, before such circumstances can be regarded as such notice, they must be of such character as necessarily to imply notice to such cotenants of the adverse claims of the one in possession.

5. Under the facts stated in the opinion, it is held, that the evidence does not support a finding of the trial court that a cotenant in possession was holding adverse and hostile to his cotenants.

Appeal from District Court, Clay County; Fred R. Smith, Judge.

Action by Luise Wyss Schwab and others against Charles William Wyss and others. From the judgment for defendants, plaintiffs appeal.

Reversed with directions.

W. T. Roche, of Clay Center, G. Detjen and C. W. Detjen, both of St. Louis, Mo., for appellants.

D. H. Myers, of Wakefield, and W. M. Beall, of Clay Center, for appellees other than Annie M. Rasmussen.

Oscar E. Peterson, of Clay Center, for appellee Annie M. Rasmussen.

HARVEY J.

This is an action for the partition of real property. Plaintiffs joined with it a cause of action for accounting for rents and profits and another one in ejectment. In addition to the general denial, the defenses were: That plaintiffs were citizens and residents of Switzerland and as such could not inherit. Second, that there was adverse possession for more than fifteen years. The trial court made findings of fact and conclusions of law. It ruled against defendants on the right of plaintiffs to inherit, and, since defendants have filed no cross-appeal, the soundness of that ruling is not before us for consideration. The trial court ruled in favor of defendants on title by adverse possession, and rendered judgment accordingly, from which the plaintiffs have appealed.

The facts briefly may be thus stated: John and Frederick Wyss, brothers, natives of Switzerland, came to Clay county, in this state, some time prior to 1880. They later became naturalized citizens of the United States. John obtained title to a quarter section of land in Clay county by patent, which he filed for record in 1880. Frederick acquired land situated a few miles away. John never married, but he improved his land and farmed it, or had it farmed, until his death in April, 1907. He left no will. John and Frederick Wyss had two brothers and a sister who remained in Switzerland. Their heirs at law are plaintiffs in this action. A few days after John's death, Frederick conferred with the probate judge of Clay county, who advised him in a letter that:

"If your sister and brothers were never citizens of this country you can be appointed administrator and go ahead settle up your brother's estate. You need not wait to those names, being aliens, they acquire any title to real estate, and from what you told me it will take all the personal estate to pay the debts. In that case you will be entitled to the real estate after the payment of the debts. You can be appointed at any time."

A few days later Frederick was appointed administrator of the estate of his brother John and filed an inventory showing the personal property of the estate and its appraised value. On the back of this inventory, in a blank prepared for that purpose, was listed the real property owned by John Wyss at the time of his death, including the quarter section of land sought to be partitioned in this action. After having debts paid and in closing the estate, Frederick Wyss wrote one of the plaintiffs in this action as follows:

"As you perhaps will know that my brother John, your uncle, died and left some property, without any will. The property was settled here in the probate court and after all claims were paid a balance of $380.09 was left to be divided among the heirs. I did send my sister in Leuzigen, Anna Maria, her part and requested her to send me the names and addresses of all other heirs which I just received. *** Yours and your late sister's part together is *** in francs 242.50, for which you will find enclosed bank draft besides legal receipt for you to sign and to return at your earliest convenience. *** I sent to all of them today, *** which is the portion coming to them. ***"

Plaintiffs had no actual knowledge that John Wyss was the owner of real property at the time of his death, and did not learn of it until about 1928. Soon after the death of John Wyss, relying upon the letter of the probate judge to him, Frederick Wyss, in good faith believing that he was the owner of the real property in question, took possession thereof with the intention of claiming the same as his own, and until his death, in November, 1929, continually remained in the open, notorious, and exclusive possession of the same, claiming to be the owner thereof. During this time he made lasting and valuable improvements, consisting chiefly in reshingling the house, patching the roof of the barn, plastering the house, repairing the fences, erecting a windmill, constructing a cement cave, and digging a well, and he paid the taxes on it each year. When plaintiffs, about 1928 or early in 1929, learned that John Wyss had died possessed of real property, they appear to have taken up the matter with Frederick Wyss by correspondence. On October 16, 1929, he wrote one of the plaintiffs, making an offer of settlement. Before anything of that kind was consummated, however, Frederick Wyss died. In July, 1930, this action was brought. Plaintiffs are the heirs at law of the two brothers and sister of John and Frederick Wyss who remained in Switzerland. The defendants are the heirs and devisees of Frederick Wyss and the executor of his will. The parties to the action, by stipulation, have agreed upon the relation of the parties as heirs at law to John Wyss. Under this stipulation the plaintiffs collectively are entitled to an undivided three-fourths interest in the real property sought to be partitioned, if they are entitled to anything. They are entitled to it unless Frederick Wyss acquired title as against them by adverse possession.

Passing now to the legal questions presented: Assuming the alien brothers and sister of John Wyss could inherit from him--a question not before us for determination--upon his death title to the real property in question passed to his three brothers and one sister, an undivided one-fourth to each. R. S. 22--120 and 22--128. They became tenants in common. 38 Cyc. 7; Schoonover v. Tyner, 72 Kan. 475, 84 P. 124. The erroneous advice of the probate judge to Frederick Wyss cannot change our statutes of descent. No question concerning the title to the real property was presented in the probate court, and the judge of that court should have given no advice concerning it.

It is well settled that each of the tenants in common to real property has an undivided interest and right of possession to each and every part of it. 38 Cyc. 20. Each and all of them are entitled to take possession of the property. When possession of the property is taken by one of them, the presumption is that he takes possession under his right of title and his right to possession by reason of his title. His title and right to possession being in common with other cotenants, his possession is presumed to be in common with other cotenants and for their use and benefit as well as his own. As against third persons other than cotenants, the simple fact that he has possession necessarily makes it adverse and hostile to them. But the simple fact that one of the cotenants has possession is not of itself adverse to other cotenants. Such possession becomes adverse to the other tenants only when the tenant in possession is claiming title and the right to possession to the exclusion of his cotenants when that matter is brought home to them. The rule is well...