Stiles v. Granger
| Decision Date | 04 September 1908 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Barnes County; Burke, J.
Action by Alice Stiles against Seymour Granger and others to determine title to land. Judgment for plaintiff, and defendant Granger appeals.
Reversed and judgment for defendant.
Reversed.
Page & Englert, for appellant.
Failure of true owner to assert title within the statutory period makes the adverse occupant owner against all others. Mayberry v. Willoughby, 5 Neb. 368; 1 Cyc. 1084; 1 Enc. Ev. 669; Probst v. Trustees, 129 U.S. 182, 9 Supt. Ct. Rep. 263; Murray v. Romine, 82 N.W. 318; Moore v. Brownfield, 34 P. 199; Wood v. Railway Co., 11 Kan. 324; Gildehaus v. Whiting, 18 P 916; Anderson v. Burnham, 34 P. 1056; Ward v. Nestell, 71 N.W. 593; Falloon v. Simshouser, 22 N.E. 835; Sheriff v. Frecking, 11 N.Y. Supr. Ct. 452; Elder v. McClusky, 70 F. 529; Roots v. Beck, 9 N.E. 698; Hapgood v. Burt, 4 Vt. 155; Carpenter v. Coles 77 N.W. 424; Seymour, Sabin & Co. v. Carli, 16 N.W. 495; Maas v. Burdetzke, 101 N.W. 182; Nash v. N.W. Land Co., 15 N.D. 566, 108 N.W. 792; Revised Codes N.D. 1905, section 6781.
Actual possession is the exercise of dominion over the land as if owned by the person so exercising. Village of Glencoe v. Woodsworth, 51 N.W. 377; Cook v. Clinton, 31 N.W. 317, 8 Am. St. Rep. 816; Copeland v. Murphy, 72 Tenn. 64; Wright v. Phipps, 90 F. 556; Batz v. Woertel, 89 N.W. 516; Lotta v. Clifford, 47 F. 614; Webber v. Clark, 15 P. 431; Crawford v. Galloway, 45 N.W. 628; Collette v. Vanderburgh, 4 L. R. A. 321.
Where a possessor of land buys at a tax sale, such purchase is a payment of the tax. Smith v. Lewis, 20 Wis. 350; Petty v. Mays, 19 Fla. 652; Lewis v. Ward, 99 Ill. 525; Christie v. Fisher, 58 Cal. 256; Swan v. Rainey, 27 S.W. 240; Murphy v. Redeker, 94 N.W. 697; Wambole v. Foote, 2 Dak. 1, 2 N.W. 239; Desty on Taxation, volume 2, page 929.
Occupant's knowledge of defective title does not prevent acquisition by adverse possession. Carpenter v. Coles, 77 N.W. 424; Searl v. School Dist. No. 2, 133 U.S. 553; Lampman v. Van Alstyne, 69 N.W. 171; Keppel v. Dreier, 58 N.E. 386; Warren v. Bowdran, 31 N.E. 300; 1 Enc. Ev. 691.
May buy out standing interest to confirm his title by adverse possession. Myer v. Hope, 77 N.W. 720; Elder v. McLusky, 70 F. 529; Barnes v. Barnes, 85 N.W. 629; Wiese v. Union Pac. Ry. Co., 108 N.W. 175; Sinder Manf. Co. v. Tillman, 21 P. 818; Mather v. Walsh, 17 S.W. 755; Owens v. Myers, 57 Am. Dec. 693; Burhous v. Van Zandt, 7 Bush. 91.
Title acquired by adverse possession is not forfeited by subsequent interruption or act. Hoffman v. White, 7 So. 816; Carter v. Chevalier, 19 So. 798; LeRoy v. Rogers, 30 Cal. 229, 89 Am. Dec. 88; Gage v. Hampden, 127 Ill. 87, 20 N.E. 12; Bank v. Fife, 8 S.W. 241.
Theodore S. Lindland, for respondent.
While United States holds title, there can be no adverse possession. N. P. R. R. Co. v. Traill Co., 115 U.S. 600, 29 L.Ed. 477; Krueger v. Schulz, 6 N.D. 310, 70 N.W. 269; 1 Am. & Eng. Enc. Law, (2d Ed.) 875-6.
Where the instrument of title is procured with knowledge of its invalidity, the grantee does not occupy under color of title. 1 Am. & Eng. Enc. Law, (2d Ed.) 868, 88 Am. St. Rep. 713.
Permitting land to be sold for taxes and buying at the tax sale is not paying taxes. 1 Cyc. 1109; McDonald v. McCoy, 53 P. 421; Irving v. Brownell, 11 Ill. 402; Wetting v. Bowman, 47 Ill. 17.
Action to determine adverse claims to the SW 1/4 of the SW 1/4 of section 25, in township 142 N., of range 58 W., in Barnes county. The complaint is in the statutory form. The defendant Seymour Granger alone answers. He denies generally the allegations of the complaint, and that plaintiff has ever been the owner of the land described, or any part thereof, and sets up various forms of defense under the statute of limitations. The only one material to be considered is that he claims title by reason of having occupied, possessed, and paid the taxes on the land continuously for more than ten years prior to the commencement of this suit under color of title by virtue of a tax deed based upon a sale for taxes of 1886; such deed having been issued on the 3d day of October, 1887, to one Bowdle, who quitclaimed to Granger on the 2d day of August, 1890, all his estate, right, title, interest, claim, property, and demand in and to said premises. This action was brought about May 12, 1905, and tried on the 17th day of February, 1906. Judgment was entered for the plaintiff, quieting the title in her, on the 10th day of March, 1906. The defendant appeals, and demands a review of the entire case by this court.
The findings do not materially assist us in determining what the trial court found to be the facts. They are in the main conclusions of law. More or less evidence was submitted on all of the defenses raised by the answer, but it is unnecessary to consider any except the one above set out. It is shown that this 40-acre tract of land was included in the grant of the United States to the Northern Pacific Railroad Company to aid in the construction of its line of road. Patent was issued to the railroad company August 22, 1884. November 10, 1879, the railroad company conveyed the premises to George Stiles and George C. Getchell. May 28, 1884, Stiles conveyed an undivided half interest to Alice Stiles, his wife, the plaintiff and respondent in the present action. July 25, 1884, the interest of Getchell was sold on execution to Chas. V. Guy and Mary Ann Guy, his wife, and a sheriff's certificate issued and recorded on said date. January 17, 1905, the sheriff's certificate aforesaid was assigned to George Stiles, and February 14, 1905, a sheriff's deed was issued to him thereon. May 9, 1905, Stiles quitclaimed to the plaintiff and respondent, his wife, and on the same day Mary Ann Guy executed a quitclaim deed to her. This is in substance the chain of title through which respondent claims. Neither she nor any of her ancestors, predecessors, or grantors were ever in actual possession of the premises, or any part thereof, and never enjoyed any of the rents or profits therefrom, and never demanded the possession, or in any manner attempted to take possession of, or assume control over, such premises. October 12, 1889, a tax deed was executed to A. M. Bowdle, purporting to convey said premises pursuant to a sale thereof for taxes for the year 1886. August 2, 1890, Bowdle and wife conveyed by quitclaim deed all the interest acquired under such tax sale to the appellant. The appellant owns the land adjoining the tract in question on the east and west. His occupancy of a few acres of the tract in controversy dates back to 1883, and in 1891 he broke it all, except about five acres, which was unfit for cultivation, and has had thirty-five acres under plow continuously since then; some years cropping it himself, and other years renting it and receiving compensation for its use. The plaintiff Stiles, lived near the land with her husband. They passed by it frequently, and never objected to its use by the appellant. George Stiles in matters relating to it acted as agent for his wife, and he testified that he knew of its occupancy by appellant, but that it was vacant and unoccupied until and during the year 1889. Neither he nor his wife ever paid any taxes on the land until after title had ripened in Granger.
Section 4928, Rev. Codes 1905, reads: "All titles to real property vested in any person or persons who have been or hereafter may be in actual, open, adverse and undisputed possession of the land under such title for a period of ten years, and shall have paid all taxes and assessments legally levied thereon, shall be and the same are declared good and valid in law, any law to the contrary notwithstanding." This is the statute under which appellant makes his principal claim to title. It is shown by competent evidence that appellant paid the taxes each year upon the premises from 1889 to 1896, both inclusive; the taxes for the latter year having been paid by him September 22, 1897. The next year appellant was away from home traveling for his health, and left the payment of his taxes in charge of an agent, with instructions to pay those on this land. By an oversight or mistake of the agent they were not paid when due on this and some of the other lands to which he held title, but it was purchased in appellant's name in his absence by his agent, December 6, 1898, at tax sale. He regularly paid the taxes each year thereafter to and including the year 1905. No contention is made by respondent that appellant was not in possession and occupancy of the land during all these years, and her agent testified that no effort was ever made to get possession thereof, and there is nothing to show that Granger's right to possession or ownership was ever challenged by any one until about the time this suit was commenced. Appellant had made a loan upon this and other land. The mortgagee requested him to strengthen the title to this property, whereupon he telephoned to the husband of the respondent, and asked him for the address of Mrs. Guy, and informed him that he wished to see if he could get a quitclaim deed from her. He wrote to Mrs. Guy, but received no reply, and it appears that she deeded to Stiles immediately after this, and suit followed.
The first question for determination is whether the purchase at tax sale December 6, 1898, for the taxes of the year 1897, by the appellant, constitutes a payment within the meaning of the statute above quoted. Respondent urges that it is not a payment, and that the deed from Bowdle to appellant does not constitute such color of title as to bring appellant within the terms of the...
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