Warr v. Honeck

Decision Date01 April 1892
CourtUtah Supreme Court
PartiesJOSEPH WARR, APPELLANT, v. JULIA HONECK, RESPONDENT

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial. The opinion states the facts except the following:

The pleadings are stated in the opinion, as is also the general effect of the evidence. The court instructed the jury as follows upon the point of wife's adverse possession to the husband: "The general rule of law is that the wife cannot claim adverse possession to the husband, but there are exceptions to this rule: and if you believe from a preponderance of the evidence in this case that the defendant was the wife of one Frederick Honeck; that Honeck acquired a patent to the quarter-section of which the eighty acres in question is a part prior to 1879; that at or about that year they separated and obtained a divorce, which was invalid, but under which they took and retained possession of the property, to-wit: he took and held possession of the east half and the defendant in this case of the west half of the property in dispute; that she claimed exclusive possession and had a house on it and portion of it fenced; that they acquiesced in this decree awarding to Honeck the east half and defendant the west half, and recognized it and held possession with regard to it, and that the defendant held the adverse possession under that claim of right or title, and paid all the taxes on it for seven successive years that were assessed, then you shall find the issues in this case for the defendant. An adverse possession is such possession as indicates by acts of ownership of the person in possession under the claim of title and of right, that such person is the owner of the property and claims the right to it, by fencing it or by herding stock on it, and claiming the possession so that the public, persons dealing with the property, may understand that the person in possession claims the right and title to it, and is in the actual possession. In this case it would not be necessary that the defendant in this case should have fenced this entire land. If she exercised acts of ownership over it, and claimed the exclusive right to the possession, that would be adverse possession, and it would be adverse possession as against the husband if in 1879, or about this time, this invalid decree was granted which purported to give her the west half and the husband the east half and they have lived separate and apart from that time, and have recognized it as a valid divorce and have held possession under the decree and according to its terms. In that case, the fact that the husband had been the owner of the land would not prevent the wife from claiming the adverse possession." The court gave no instruction upon the question of an estoppel made in the complaint, and did not submit that question to the jury.

Affirmed.

Messrs Hoge and Burmester, for the appellant.

Appellant's brief cited as to proposition that wife cannot hold adversely to husband while the marital relation continues. 1 American and English Cyclopedia of Law, 250. Bank v. Guerra, 61 Cal. 109; Mandlin v. Cox, 67 Cal. 387, 7 P. 804; Veal v. Robinson, 70 Ga. 809; Bell v. Bell's Adm'r, 37 Ala. 536; Hendricks v. Rasson, 53 Mich. 575, 19 N.W. 192; Snyder v. People, 26 Mich. 106; Berry v. Hall (Ky.), 11 S.W. 474.

Messrs. Zane and Putnam, for the respondent.

The respondent's brief admitted the general rule of commonlaw, but argued that a feme sole was an exception to the general rule. Respondent was a feme sole. Love v. Moynehan, 16 Ill. 277, 63 Am. Dec. 306 and note; Wright v. Hays, 10 Tex. 130, 60 Am. Dec. 200; Arthur v. Broadnax, 3 Ala. 577, 37 Am. Dec. 707 and note; Rhea v. Rhenner, 1 Pet. 105; Phelps v. Walther, 78 Mo. 320, 47 Am. Rep. 112; Reis v. Lawrence, 63 Cal. 129, 49 Am. Rep. 83, and note Common law rule has been relaxed. Clark v. Gilbert, 39 Conn. 94; Gafford v. Strauss, 7 Law. Rep. 568. Void decree was color of title. Hall v. Law, 102 U.S. 461; Wilson v. Atkinson, 77 Cal. 485; Packard v. Moss, 68 Cal. 123, Utah statutes give fullest rights to married women. Sections 2528, 2530, 2640, 2649, 3172, 3140, 2 Comp. Laws, 1888; and Cereghmo v. Wagener, 4 Utah, 514; Barton v. Barton, 32 Md. 214; Power v. Lester, 23 N.Y. 527; Flenner v. Flenner, 29 Ind. 564. And on the question at issue the brief cited, Veal v. Robinson, 70 Ga. 809; Hartman v. Nettles, 64 Miss. 495; also Avent v. Arrington, 105 N.C. 377; McQueen v. Fletcher, 77 Ga. 444. Cases cited by appellant were distinguished. Also on question as to the alleged error in permitting question to be asked whether or not it was well known in the neighborhood that respondent claimed the land, was cited Wood v. Trans. Co. (Ala.), 3 So. 475.

BLACKBURN, J. ANDERSON, J., and MINER, J., concurred.

OPINION

BLACKBURN, J.

This is an action of ejectment brought by appellant against respondent to recover the possession of the W. 1/2 of S.W 1/4 of section 21, township 2 S., of range 6 E. of the Salt Lake Meridian, on May 22, 1890. Complaint alleges ownership and right of possession and ouster. Defendant answers, specific denial and statute of limitations; that she has had adverse possession of the premises since the 1st day of December, 1879; that formerly Carl Frederick Honeck was the owner in fee of said premises, together with the E. 1/2 of said quarter section, and she was his wife; that they had separated, and said quarter section was then partitioned between them, said Carl Honeck taking the east half and this defendant the west half; and that she has lived peaceably upon the same since that time, and made valuable improvements upon it, and raised her family upon it, and since that time she and her said husband have lived separate and apart, and he has done nothing for the support of her and her children by him. And with the full knowledge of all these facts, plaintiff caused said Carl Frederick Honeck to deed him said west half of said quarter section in fraud of all her rights. Trial by jury and verdict for defendant. Motion for new trial, and motion overruled. This appeal is from both the judgment and the order overruling motion for new trial. The evidence as developed by the record is substantially as follows: Carl Frederick Honeck was the husband of the defendant, and acquired the title to the S.W. 1/4 of section 21, township 2 S., of range 6 E., and lived with the defendant on the W. 1/2 of said quarter section. They separated; the wife procured a decree, from the probate court, of divorce, giving her the west half of said quarter, and that left Carl Honeck the east half; this was in 1879. This decree is admitted to be void. But they continued to live apart until this suit was brought, and both parties seemed to acquiesce in the decree. The defendant continued to live upon the land, fenced and farmed some of it, and herded the neighbors' cattle off of the other part, and her own, upon it. In 1887, Carl Frederick Honeck deeded the said west half to the plaintiff, when he was living apart from his wife in Salt Lake City. The plaintiff all these years lived about three-quarters of a mile from the defendant,...

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7 cases
  • Bryant v. Cadle
    • United States
    • Wyoming Supreme Court
    • October 5, 1909
    ...lien of the judgment, if no levy was made upon the property thereunder until after the prescription title had ripened. In Warr v. Honeck, (Utah) 8 Utah 61, 29 P. 1117, it held that where a husband had acquiesced in a void decree of divorce dividing his land equally between his wife and hims......
  • Toltec Ranch Co. v. Babcock
    • United States
    • Utah Supreme Court
    • December 13, 1901
    ...the fact that she was the plural wife and not the legal wife of Chester Loveland, certainly can not be taken advantage of by her. Warr v. Honeck, 8 Utah 61; Maudlin v. Cox, 67 392. Patent issued September 5, 1896; this action was commenced August 14, 1899; we maintain that the statute of li......
  • Thomson v. Reynolds
    • United States
    • Utah Supreme Court
    • June 10, 1918
    ... ... Conv. sections 1563-1564, and 1574; 2 Devlin on Real Estate ... (3d Ed.) section 760; Toland v. Corey , 6 ... Utah 392, 24 P. 190; Warr v. Honeck , 8 Utah ... 61, 29 P. 1117; Land & Live-Stock Co. v ... Dixon , 10 Utah 334, 37 P. 573; Smith v ... Myers , 56 Neb. 503, 76 ... ...
  • Kennedy v. Vandine, 34621
    • United States
    • Florida Supreme Court
    • April 20, 1966
    ...the common law doctrine of entireties exists which hold that after desertion of one spouse by the other, ouster is possible. Warr v. Honeck, 8 Utah 61, 29 P. 1117, and cases cited therein; Bride v. Walker, 1943, 206 Ark. 498, 176 S.W.2d 148. We do not find it necessary to pass on this quest......
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