Le Vasseur v. Roullman

• Decision Date: 10 March 1933
• Docket Number: 7006.
• Citation: 20 P.2d 250,93 Mont. 552
• Parties: LE VASSEUR v. ROULLMAN et al.
• Court: Montana Supreme Court

20 P.2d 250

93 Mont. 552

LE VASSEUR v. ROULLMAN et al.

No. 7006.

Supreme Court of Montana

March 10, 1933

Appeal from District Court, Missoula County; Theodore Lentz, Judge.

Action by Edmund Le Vasseur against Alice E. Roullman and others. From an adverse judgment, plaintiff appeals.

Affirmed.

H. R Boden, of Missoula, for appellant.

CALLAWAY Chief Justice.

The plaintiff brought this action to quiet title to residence property in Missoula. He designated as defendants twenty-five persons, supplementing those named with "and all other persons," etc. Some of the designated defendants disclaimed any interest in the property, four defaulted, and at the trial the plaintiff dismissed as to others.

Prior to her death many years ago the property belonged to Julia Le Vasseur, who died intestate, leaving as her heirs her husband and nine children, one of whom is the plaintiff; the heirs were entitled to the property in the proportions of one-third to the husband and two twenty-sevenths to each of the children.

When the plaintiff began the action, he was, and had been for nearly twenty years, the owner of record of eight twenty-sevenths interest in the property. In his complaint he alleged himself to be "the complete equitable owner entitled to the fee thereto," and in the peaceable and lawful possession of the premises, that he and his predecessors in interest had "been in the continuous uninterrupted, and undisputed possession" of the premises for more than ten years prior to the commencement of the action, and that for more than ten years he had "discharged all liens accruing against said premises by reason of imposition of lawful taxes, assessments, insurance and other encumbrances"; and that defendants, both named and unknown, claim some right, title, or interest in the premises adverse to plaintiff, which "claim or claims of defendants is or are without right, foundatio, or authority in law or in equity."

When the matter came on for trial, the plaintiff, after showing the condition of the record title, testified that he had been in the exclusive possession of the premises for over ten years, and during that period had paid the taxes and special improvement assessments levied thereon, as well as insurance. Plaintiff's father is dead, but the record does not disclose when he passed away. In answer to the question "Will you state whether any of these defendants have ever made any claim to this property as heirs of your father and mother during the time you have had exclusive possession of the premises?" he answered, "None except my brother Fred." Fred was one of the defendants whose default was entered. Plaintiff said that none of the defendants had had possession of the premises "during the past ten years" to his exclusion, that none of them had ever brought suit against him for the possession of the premises during that time, nor had any of them "interfered" with his possession. The last question propounded was: 'And you claimed title by reason of your long possession exceeding a period of ten years and paying all the taxes, and you have held that title openly against all these defendants?' to which he answered, "Yes sir."

The court suggested to plaintiff's counsel that the complaint is insufficient to show acquisition of the property by advserse possession and gave him leave to amend. Counsel declined to amend, and demanded a decision on the pleadings and the proofs submitted. The court took the matter under advisement, and thereafter rendered judgment that the plaintiff take nothing against the defaulting defendants, and that the action be dismissed. From this judgment the plaintiff has appealed.

If it were necessary for plaintiff, in order to prove title based upon adverse possession, to plead that he had so obtained it, the court was correct in saying the complaint is insufficient. We think it was no necessary.

It is not requisite that plaintiff deraign his title. McKay v. McDougal, 19 Mont. 488, 48P. 988. He need only state the ultimate facts. He need only allege himself to be the owner of the property, describing it, and that the defendant asserts some title thereto adverse to him. Slette v. Review Publishing Co., 71 Mont. 518, 230 P. 580, and cases cited.

The purpose of plaintiff in alleging himself to be "the complete equitable owner entitled in fee" to the property is not clear, but it is sufficient to enable him to maintain the action. "Whatever interest the plaintiff has may be quieted. If a title in fee, such interest may be quieted; if a less interest, the less interest may be likewise quieted." McKinnie v. Shaffer, 74 Cal. 614, 16 P. 509; Pollock M. & M. Co. v. Davenport, 31 Mont. 452, 78 P. 768.

If we disregard what may be deemed surplusage in the complaint, we have no difficulty in saying that the pleading, although inartificially drawn, is sufficient. But the proof falls short. Undoubtedly the plaintiff sought to prove that he had acquired title to the entire property by adverse possession. He was in the occupancy of the premises for over ten years prior to the commencement of the action. The occupancy recognized by our statutes (section 6818, Rev. Codes 1921), which will ripen into title, must be such as to constitute adverse possession, as occupation other than adverse is deemed to have been under and in subordination to the legal title. Ferguson v. Standley, 89 Mont. 489, 300 P. 245. Merely being in exclusive possession is not enough--possession alone, no matter how exclusive and complete, is not sufficient to create a title by prescription. In order to do that, the possession must be adverse. Dobins v. Economy Gas Co., 182 Cal. 616, 189 P. 1073.

The possession of realty, to be adverse, must be actual and visible, exclusive, hostile, and continued during the time necessary to create a bar under the statute of limitations. Collins v. Thode, 54 Mont. 405, 170 P. 940, 941; Kenck v. Deegan, 45 Mont. 245, 122 P. 746; Smith v. Duff, 39 Mont. 374, 102 P. 981, 133 Am. St. Rep. 582. The possession must be "open and notorious, or such as to give the owner of the property either actual knowledge of the hostile claim, or of such a character as to raise a presumption of notice, or so patent that the owner could not be deceived." Collins v. Thode, supra. "The claimant must exercise such acts of ownership and occupancy as are sufficient to 'hoist his flag' over the lands so that all may observe it." 2 C.J. 76; McComb v. Saxe, 92 Ark. 321, 122 S.W. 987. "The claim of the possessor must invade the title of the other (Bullerdick...