Smith v. J.B. Stanfield
| Decision Date | 27 May 1916 |
| Parties | CHARLES B. SMITH and BENJAMIN MOYSES, Appellants, v. J. B. STANFIELD et al., Respondents |
| Court | Idaho Supreme Court |
REAL ESTATE-ACTION TO QUIET TITLE-FINDINGS OF FACT-SUFFICIENCY OF EVIDENCE-JUDGMENT MODIFIED.
1. In an action to quiet title to real estate, where the court fails to find upon certain material issues, and to quiet title in the proper parties, the cause will be remanded for further proceedings.
2. Held, that the evidence is sufficient to support the finding of facts.
3. Judgment modified and affirmed.
[As to right of holder of equitable title to bring suit to quiet title against holder of legal title, see note in Ann.Cas 1913B, 89]
APPEAL from the District Court of the Fourth Judicial District, in and for the County of Elmore. Hon. C. O. Stockslager, Judge.
Action to quiet title to certain real estate. Judgment quieting title in defendants. Modified and affirmed.
Cavanah & Blake, for Appellants.
If the village of Mountain Home had the right to use this land for street purposes (which we contend it did not, under the evidence), its right did not commence until it opened the same and used it for street purposes. (Thiessen v Lewiston, 26 Idaho 505, 144 P. 548.) The defendant cannot have decreed to him an interest of a third party. (32 Cyc. 1343.)
If the village of Mountain Home has a paramount right to the use of the strip of land for street purposes, as the defendant Stanfield's counsel attempted to establish in the court below, then he was in possession of this land by permission from the village.
"Possession by permission or license from the owner is not adverse and cannot ripen into title, no matter how long continued or however exclusive it may be." (Omaha & Grant Smelting etc. Co. v. Tabor, 13 Colo. 41, 16 Am. St. 185 21 P. 925, 5 L. R. A. 236; Jensen v. Hunter, 5 Cal. Unrep. 83, 41 P. 14; Davis v. Devanney, 7 Idaho 742, 65 P. 500.)
"Occupation, when in common with the public generally, is not such exclusive possession as will constitute the basis of a title of adverse possession."
Where a party recognizes title or paramount interest to be in a third person, his adverse possession ceases to be adverse, no matter how hostile it may previously have been. (Miller v. Keene, 5 Watts (Pa.), 348; Lamb v. Foss, 21 Me. 240.)
Payment of taxes must be shown in order to establish title by adverse possession. (Brose v. Boise City Ry. etc. Co., 5 Idaho 694, 51 P. 753; Green v. Christie, 4 Idaho 438, 40 P. 54.)
"All transfers and interests in real property must be evidenced by an instrument in writing." (McGinness v. Stanfield, 7 Idaho 23-26, 59 P. 936; 20 Cyc. 210, and cases cited.)
An unrecorded instrument purporting to convey title is void as to a subsequent purchaser. (Swank v. Sweetwater Irr. & Power Co., 15 Idaho 353, 98 P. 297.)
(2 Jones on Mortgages, sec. 1212; Chouteau v. Riddle, 110 Mo. 366, 19 S.W. 814; Seeley v. Manning, 37 Wis. 574; Tucker's Exrs. v. Keeler, 4 Vt. 161; Lowry v. Tilleny, 31 Minn. 500, 18 N.W. 452; Neilson v. Grignon, 85 Wis. 550, 55 N.W. 890.)
W. L. Harvey, for Respondent Mary Person Magden.
Sec. 6008, Rev. Codes, exempts from the statute of frauds those agreements where there has been a part performance and those out of which have grown equitable trusts. (Barton v. Dunlap, 8 Idaho 82, 66 P. 832; Francis v. Green, 7 Idaho 668, 65 P. 362; Grice v. Woodworth, 10 Idaho 459, 109 Am. St. 214, 80 P. 912, 69 L. R. A. 584; Robbins v. Porter, 12 Idaho 738, 88 P. 86; Morrow v. Matthew, 10 Idaho 423, 79 P. 196.)
Apparent title and a defeasance can be by parol and shown by parol. (Thompson v. Burns, 15 Idaho 572, 99 P. 111; 1 Jones on Mortgages, 282.)
W. C. Howie, for Respondents Stanfield, Robt. Nichol and Bella Nichol.
The evidence clearly shows that for over seven years before the commencement of this action appellants were not seised or possessed of said property, and that the statute of limitations applies as well to actions to quiet title, even though our statute provides that the action may be brought by one out of possession. (32 Cyc. 1329-1344; Bradley v. Johnson, 11 Idaho 689, 83 P. 927; Bacon v. Rice, 14 Idaho 107, 93 P. 511; Casserly v. Alameda County, 153 Cal. 170, 94 P. 765.)
The use of land for a street is merely an easement, a right of way over the land, and is not an ownership of the land, and our statute expressly provides to that effect. (Secs. 3091, 878, Rev. Codes; Moody v. Palmer, 50 Cal. 31; Kittle v. Pfeiffer, 22 Cal. 484, 485.)
The owner of the abutting land owns the land to the center of the street. (Webber v. California & Ore. R. Co., 51 Cal. 425; Weyl v. Sonoma Valley R. Co., 69 Cal. 202, 10 P. 510; Watkins v. Lynch, 71 Cal. 21, 11 P. 808; Fraser v. Ott, 95 Cal. 661, 30 P. 793; Coburn v. Ames, 52 Cal. 385, 28 Am. Rep. 634.)
Adverse possession does not have to be adverse to government ownership, much less to government easements. (Northern P. R. Co. v. Pyle, 19 Idaho 3, 5, 112 P. 678.)
L. B. Green, D. McLaughlin and J. G. Watts, for Other Respondents.
This is an action brought to quiet title to a large number of distinct and separate tracts of land in the town and in the vicinity of the town of Mountain Home, Elmore county. It is a general suit to quiet title in one action to said tracts of land, each of the answering defendants occupying or claiming a separate tract, and none of the defendants claiming any interest in the tract claimed by any other defendant, except the two defendants Nichol and McDonald. Many of the defendants appeared and answered and others failed to appear and their defaults were entered. The defendants the Sub-Rosa Gymnasium Club and School District No. 6 filed cross-complaints and by stipulation of respective counsel the allegations of those cross-complaints were deemed denied.
Upon a trial of the case the court found that the plaintiffs were the owners in fee of lots 5 and 6 in block D of the town of Mountain Home, and that the defendants were in each instance, except the defendants Lucille McDonald, John H. Brady and Peter Whitbeck, the owners and entitled to the possession of the land claimed in their separate answer, and judgment was entered accordingly.
The court made no finding of fact and no decree was entered with reference to who was the owner of, and entitled to the possession of, a certain part of the land mentioned and described in plaintiff's complaint. From said judgment and decree this appeal was taken.
Counsel for appellants first take up in their brief the question of the sufficiency of the evidence to support the decree in favor of the defendants. The evidence, among other things, shows that all of the different tracts of land involved in this action were conveyed to the plaintiffs by one Ochsner, deed to which was recorded in said county on February 10, 1909. It also appears that plaintiffs introduced a long chain of record title from patent from the United States government down to the present time, showing the record title in the plaintiffs. It also appears that the plaintiffs have the only record title to all of said lands, running from the patent to the date of the trial. Their evidence shows an unbroken chain of title without conflict or adverse deed. So far as that evidence shows, it appears that the plaintiffs have the legal title. Most of the defendants claimed under adverse user, under an oral contract with some of the predecessors of appellants, and adverse possession. The evidence shows that many of the defendants have had adverse possession of said land for more than five years, and have cultivated and improved it to a certain extent.
The first assignment of error discussed by appellants in their brief is based on the ground that the court failed to find who was the owner or owners of a certain tract of land described by metes and bounds in the 5th paragraph of the complaint, as follows:
"Also commencing at a point forty (40) feet North and four hundred and sixty-three (463) feet west of the Southeast Corner of the Southeast quarter of the Southwest quarter of Section Twenty-five (25) Township Three (3) South, Range Six (6) East, Boise Meridian, thence running West two hundred three and one-tenth (203.1) feet, thence North two hundred fourteen and five-tenths (214.5) feet, thence East two hundred three and one-tenth (203.1) feet, thence South two hundred fourteen and five-tenths (214.5) feet to the point of beginning."
The only evidence introduced concerning this tract of land was offered by the plaintiffs, which evidence shows plaintiffs had a complete record chain of title thereto and that it is included in the deed from said Ochsner to the plaintiffs. On that state of facts the court should have found in favor of the plaintiffs, and quieted their title to said tract of land and the decree must be modified to that effect.
It is next contended that the evidence is insufficient to establish the title of the defendant Stanfield to certain lands specifically described in paragraphs 8 and 9 of the court's finding of facts.
The record shows that this tract of land was left for a street and the defendant in his answer and cross-complaint interposed the defense of five years' possession, and also alleges that he "is the owner in...
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