Sparks v. Bodensick

• Decision Date: 07 October 1905
• Docket Number: 14,246
• Parties: SILAS H. SPARKS et al. v. ADOLPH FRIEDRICH HEINRICH BODENSICK et al
• Court: Kansas Supreme Court

82 P. 463

72 Kan. 5

SILAS H. SPARKS et al. v. ADOLPH FRIEDRICH HEINRICH BODENSICK et al

No. 14,246

Supreme Court of Kansas

October 7, 1905

Decided. July, 1905.

Error from Cowley district court; CARROLL L. SWARTS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DESCENTS AND DISTRIBUTIONS--Real Estate--Alien Heirs. The provision of the original section 17 of the bill of rights of the state constitution, that "no distinction shall ever be made between citizens and aliens in reference to the purchase, enjoyment or descent of property," made the statute of descents and distributions apply to aliens as well as to citizens, and enabled the former to inherit real estate in Kansas.

2. TITLE AND OWNERSHIP--Adverse Possession. Where one entered upon land of an intestate under a deed from persons who in fact had no title but who were described therein as all of the intestate's heirs, and afterward purchased the interest of a part of the true heirs under circumstances tending to show a recognition of their ownership, the fact that he then made unsuccessful efforts by advertisement in newspapers and otherwise to ascertain whether there were any other heirs is a circumstance from which a trial court is justified in finding that the possession of such occupant was not at that time adverse to the heirs who had not conveyed their interest to him, notwithstanding he was in complete control of the property, paying the taxes, making improvements and collecting the income without accounting to any one.

3. TITLE AND OWNERSHIP--Case Followed. The second paragraph of the syllabus in Russell v. Hallett, 23 Kan. 276, approved and followed.

Hackney & Lafferty, for plaintiffs in error.

Grant Stafford, G. H. Buckman, and Charles W. Roberts, guardian ad litem, for defendants in error.

MASON J. All the Justices concurring.

OPINION

MASON, J.

This is a controversy over the title to a tract of land that was owned by C. A. Spradau at the time of his death. Spradau was never married, and had no children. Both his parents died in his lifetime. He died intestate in 1873. The sole heirs of his mother living at the time of his death were her brothers, George Shaffer and Jacob K. Shaffer. The property therefore descended one-half to the Shaffers and one-half to the heirs of Spradau's father, unless the matter is affected by the fact that while the mother and her heirs were American citizens the father and all his heirs were aliens.

In 1878 Silas H. Sparks obtained a quitclaim deed to the property from several persons who were described in the instrument as the sole heirs of C. A. Spradau, but who in fact were not his heirs and had no interest in the land. Sparks, however, took possession under the deed and remained in the occupancy of the property until this suit was begun, in 1898, except that in 1887 he was forcibly dispossessed by one B. W. Matlack, whom he ousted by action brought for that purpose within a few months. In 1887 Sparks bought the title that had been inherited by Jacob Shaffer, and between that time and 1900 he also acquired by purchase the title that had descended to George Shaffer, so that he had then succeeded to all the rights of the heirs of Spradau's mother. In 1898 the heirs of Spradau's father (or their successors in interest) brought a suit for partition against Sparks, claiming the ownership of a half-interest in the land. They recovered a judgment sustaining that claim, from which Sparks now prosecutes error. The judgment must be affirmed unless it shall be held either (1) that, by reason of the alienage of Spradau's father and his heirs, the entire title has passed through the heirs of his mother to Sparks, or (2) that Sparks has acquired title against the foreign claimants by adverse possession for fifteen years.

It is contended by plaintiff in error that at the time of Spradau's death the rule of the common law that aliens cannot inherit real estate was in force in Kansas, and that therefore the entire title to the property passed to his only American kinsmen--his mother's brothers. To this contention we cannot agree. Section 17 of the bill of rights of the state constitution as it then stood provided that "no distinction shall ever be made between citizens and aliens in reference to the purchase, enjoyment or descent of property." This provision was self-executing. Under its terms the statutes determining the course of descent of the property of intestates of necessity defined the rights of aliens as well as of citizens, and upon Spradau's death the foreign relatives--the father's heirs--became the owners of a half-interest in the land.

A provision of a treaty negotiated in 1827 between the United States and the Hanseatic republic, of Bremen, of which Spradau's father and his heirs were citizens, is invoked as having a bearing on the matter. This provision is substantially that, in case the laws of either country prevent citizens of the other from entering into the possession of inherited real estate on account of their alienage, a period of three years shall be granted in which to dispose of it, but as no such disability was imposed by the law of Kansas when Spradau died there is nothing in the circumstances of the present case to which it can apply.

The amendment to the section of the constitution above quoted, adopted in 1888, which permitted regulation of the rights of aliens to inherit and hold property, and the statute passed in pursuance of it restricting such rights (chapter 3, Laws of 1891, repealed by chapter 1, Laws of 1901), cannot affect the case, for the title had vested in the foreign heirs in 1873 and could not be devested by subsequent changes in the law. No attempt was made by the state to enforce against the defendants in error the requirement of the statute of 1891 that alien landowners should dispose of their real estate within three years, and the plaintiff in error can take no benefit from it. (Investment Co. v. Trust Co., 65 Kan. 50, 68 P. 1089.)

It remains to determine whether Sparks held possession of the property adversely to the foreign heirs for a period of fifteen years. The physical interruption in his possession by the intrusion of a stranger, to which reference has already been made, was probably not enough to break its continuity in legal contemplation, for it appears that a legal remedy was invoked against it within a reasonable time and was prosecuted to a successful determination. (1 Cyc. 1012.) The vital question is whether, in view of the fact that the plaintiffs were cotenants of Sparks, his possession was hostile to them. It is familiar law that as between cotenants the character of occupancy necessary to constitute adverse possession is very different from that obtaining in the case of strangers.

"The entry and possession of one tenant in common is deemed the entry and possession of all the cotenants, and does not amount to a disseizin. Such possession, therefore, can never be adverse until there is an actual ouster of the cotenants, or some act deemed by law equivalent thereto." (1 A. & E. Encycl. of L. 801.)

"Mere possession of a tenant in common, no matter how full and complete, does not of itself prove an ouster of his cotenant. There must be something to show a denial or repudiation of his cotenant's rights, or the possession will be deemed to be held in subordination thereto." (Squires v. Clark, 17 Kan. 84.)

In Elder v. McClaskey, 17 C. C. A. 251, 261, 70 F. 529, 538, it was said that the rule expressed in the paragraphs just quoted "has no application to any case except where the possession of the person in question was avowedly begun as a tenant in common, or under a deed which defined his title as such." This statement probably restricts the rule too closely, for it has been held to apply where one of several heirs enters into the possession of land upon the death of the ancestor without any acknowledgment of cotenancy. ( Phillipson v. Flynn, 83 Tex. 580, 19 S.W. 136.) Where, however, one takes possession of land under a deed the terms of the instrument may be very important as indicating the character of the claim asserted. A multitude of cases hold that "where one of several tenants in common...