Weeks v. Cranmer

• Citation: 18 S.D. 441,101 N.W. 32
• Parties: WILLIAM H. WEEKS, Plaintiff and respondent, v. SIMEON H. CRANMER, Emma A. Cranmer, and John W. Cranmer, Defendants and appellants.
• Decision Date: 19 October 1904
• Court: Supreme Court of South Dakota

18 S.D. 441

101 N.W. 32

WILLIAM H. WEEKS, Plaintiff and respondent, v. SIMEON H. CRANMER, Emma A. Cranmer, and John W. Cranmer,

Defendants and appellants.

South Dakota Supreme Court

Appeal from Circuit Court, Brown County, SD

Hon. A. W. Campbell, Judge

Reversed in part

S. H. Cranmer

Attorneys for appellants.

John H. Perry

Attorneys for respondent.

Opinion filed October 19, 1904

(See 17 SD 173, 95 NW 875)

FULLER. J.

At the trial of this action now before us on rehearing the title to certain real property was quieted in plaintiff, but on appeal to this court the judgment was reversed as to the defendant John W. Cranmer on the ground that plaintiff’s ownership was not sufficiently established. Weeks v. Cranmer,(1902).

In support of the allegation that plaintiff is the, owner in fee and in actual possession of the premises, our attention is now specially directed for the first time to a judgment in ejectment in his favor, a writ of possession addressed to the, sheriff commanding him to deliver actual possession to plaintiff, and the return of that officer affirmatively showing that the, writ was duly executed on the 11th day of November, 1896, by placing plaintiff in actual occupancy of the premises. Now, when the existence of a condition or thing is admitted or proved, it is presumed to continue until the contrary is legally established by a counter presumption or rebutting testimony. 1 Jones Ev. § 52; Currier v. Gale, 9 Allen 522; Table Mountain Gold and Silver Mining Co. v. Waller’s Defeat Silver Mining Co., 97 AmDec 526. Therefore the undisputed evidence shows that plaintiff was in actual possession of the premises claiming to be the owner in fee by virtue of the deed and proceedings mentioned in our former opinion, and as against defendants who are without even color of title, such possession and claim of ownership is sufficient evidence of title to justify a recovery. “Title to property in a certain person, once proved or admitted, is presumed to continue until the contrary is proved.” Coleman & Burden Co, v. Rice (Ga.), 31 S.E. 424. “The possession of real estate is prima facie evidence of the highest estate in the property, to-wit, a seisin in fee.” Hill v. Draper, 10 Barb. 454. “Possession with claim of ownership is not only evidence of title. but it is title itself in ,a low degree.” Christy v. Richolson, 48 Kan. 177, 29 Pac, 398, “It is a well settled rule in relation to possessory rights that prior possession is prima facie evidence of title.” Feirbaugh v. Masterson, 1 Idaho 135, The following cases hold that possession of real property is prima facie evidence of title, and sufficient to maintain ejectment: Williamson v. Tobey, 86 Cal. 497, 25 Pac, 65; Wilcox v. Leominster National Bank, 43 Minn. 541, 19 AmStRep 259; Mayor of New York v. Carleton, 113 NY 285, 21 N.E. 55; Day & White v. Alverson, 9 Wend. 223.

Chief Justice Field, in disposing of a case where the plaintiff failed to prove title deraigned from a paramount source, characterizes the legal effect of actual possession of rea1 property by a prior grantor as follows:

“But aside from all...