The Viking Refrigerator and Manufacturing Company v. Crawford

• Decision Date: 11 March 1911
• Docket Number: 16,747
• Citation: 114 P. 240,84 Kan. 203
• Parties: THE VIKING REFRIGERATOR AND MANUFACTURING COMPANY, Appellee, v. R. LINDSAY CRAWFORD, Appellant
• Court: Kansas Supreme Court

114 P. 240

84 Kan. 203

THE VIKING REFRIGERATOR AND MANUFACTURING COMPANY, Appellee, v. R. LINDSAY CRAWFORD, Appellant

No. 16,747

Supreme Court of Kansas

March 11, 1911

Decided January, 1911.

Appeal from Wyandotte district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ADVERSE POSSESSION--Continuity of Possession--Conveyance--Possession of Grantor. The continuity of possession of real estate is not broken by a deed to a third party, not the owner, executed by the person in possession, who continues to remain in possession after the execution of his deed. His possession will be regarded as the possession of his grantee, but not that of the owner.

2. ADVERSE POSSESSION--Transfer of Possession--Evidence. No paper evidence of a transfer of possession of land held under a claim of the first entry is necessary. Where the possession of real estate is actual, it may commence in parol, without deed or writing, and may be transferred and pass from one occupant to another by parol or bargain and sale, accompanied by delivery.

J. L Smalley, for the appellant.

Junius W. Jenkins, and T. A. Witten, for the appellee.

OPINION

PORTER, J.:

The appellee brought suit to quiet title to lots 40 and 41 in block 70, Wyandotte City, now Kansas City, claiming to be the owner by adverse possession for more than fifteen years. The court rendered judgment in favor of the appellee, which the appellant seeks to reverse.

The Wyandotte Town Company held the legal title, and, on the 19th day of January, 1861, conveyed the same to David Crawford, from whom the appellant claims by a direct line of conveyances. Sometime in 1881 or 1882 W. H. Ryus took possession of the lots, in connection with six others in the same block to which he held title, inclosed them all with a fence and used them for a time as a part of a brickmaking plant, and afterward as a part of a planing mill which he operated on the property. Several years afterward he transferred the planing-mill property to E. S.W. Drought, and at the same time turned over the possession of the lots in controversy, stating to Drought that his title to them was by possession and the statute of limitations. Afterward Drought conveyed to Frederick W. Soper and delivered to him the possession of these lots, with the others, making the same statement to Soper that his grantor had made to him with respect to the nature of the title. Neither conveyance described or mentioned the lots in controversy.

Drought was a witness at the trial and testified that the lots were all inclosed together, and that after he took possession he used these lots just as he did the rest of the property, and occupied them until he transferred to Soper; that Soper held the possession in the same way; that for some reason Soper never paid him for the property and he took it back, including the lots in controversy. Soper was in possession of the property about two years. During his possession he conveyed the property to Abby J. Smith, by a general warranty deed dated January 5, 1900, which described lots 40 and 41. Soper, however, continued in possession until May 1, 1900, when he turned the property back to Drought and executed to Drought a warranty deed, which also included lots 40 and 41. At the same time Abby J. Smith and her husband quitclaimed the property to Drought, and their deed described these two lots. Later in the same year Drought conveyed lots 40 and 41 to the refrigerator company, which has ever since remained in possession.

One contention which the appellant makes is that the possession of the appellee and its grantors was not continuous. It is insisted that the continuity was broken by the conveyance by Soper and wife to Abby J. Smith. Drought's testimony is that Soper continued in possession until he reconveyed to Drought. The Smiths never had the actual possession, but the appellee claims, and the court doubtless held, that the possession of Soper, the grantor of the Smiths, was their possession. The appellee relies upon McNeil v. Jordan, 28 Kan. 7, and Sellers v. Crossan, 52 Kan. 570, 35 P. 205. In the latter case the first paragraph of the syllabus reads:

"Where an owner executes and places upon record a warranty deed purporting to convey the complete title of land occupied by himself and family, his subsequent possession will generally be considered as in subserviency to the record title."

There can be no doubt that the expression there used, "the record title," refers to the title conveyed by the grantor. The rule, as stated in...