Wheeler v. Taylor

• Decision Date: 14 February 1898
• Citation: 32 Or. 421,52 P. 183
• Parties: WHEELER et al. v. TAYLOR et al. [1]
• Court: Oregon Supreme Court

52 P. 183

32 Or. 421

WHEELER et al. v. TAYLOR et al. ^[1]

Supreme Court of Oregon

February 14, 1898

Appeal from circuit court, Jackson county; H.K. Hanna, Judge.

Action to quiet title by M.W. Wheeler and others against H.H. Taylor and others. From a judgment in favor of the plaintiffs defendants appeal. Modified.

This is a suit to quiet the title to certain real property. The material facts are: That on October 3, 1882, one Hobart Taylor died, intestate, in Jackson county, Or., leaving the following named persons as his only heirs at law: Abigail Taylor, his mother; S.C. Taylor, a brother; and the children of his deceased sister, Rachel, to wit, M.W. Wheeler, Myra A Gilfillan, Elva C. Persons, and Frederick Mench. That at the time of his death he was seised in fee, and entitled to and in the possession, of the following described real estate, to wit: Lots 7, 8, 9, 10, 11, 12, 13, and 14 in section 34; lots 4, 5, 6, 7, 8, and 9 in section 35; the donation land claim of Elisha Larson, No. 55,--all in township 37 S., of range 1 W.; and also the S.E. 1/4 of the S.E. 1/4 of section 29, in township 37 S., of range 1 E., of the Willamette meridian, in said county and state. That at said time one S.H. Holt was living on the premises, having had a demise thereof for a term of one year, which expired October 1, 1882; and, on the 7th of that month, Abigail Taylor executed to him a written lease thereof for a term of two years from the expiration of the former term, and, in consideration thereof, he agreed to pay his said lessor, "her heirs or assigns," the sum of $300 annually, and thereupon continued in possession of said premises until October 1, 1892, paying the rent therefor to Abigail Taylor or to plaintiffs. That on July 21 1885, the said Abigail executed to plaintiffs a warranty deed whereby she intended to convey to them all of said real estate, but, by mutual mistake, the S.E. 1/4 of the S.E. 1/4 of section 29 in township 37 S., of range 1 E., was improperly described, as being in range 1 W. That on December 11, 1888, S.C. Taylor died, testate, in said county; and, his last will and testament having been admitted to probate, the defendants, as his devisees and heirs at law, on December 6 1893, claiming the interest which their ancestor inherited from his deceased brother, commenced actions for possession against one W.T. Anderson, a tenant in possession of said premises, under a lease thereof from plaintiffs. That plaintiffs thereupon commenced this suit for the relief hereinbefore stated, claiming title to the whole of said real property by adverse possession thereof, by themselves and their grantor, for a period of more than 10 years prior to the commencement of this suit. A trial being had, the court found for plaintiffs, and decreed that defendants had no right, title, claim, interest, or estate in or to said premises, or any part thereof, and perpetually enjoined them from in any wise interfering with the peaceable and quiet possession of said real property by plaintiffs, their heirs and assigns, and from instituting or prosecuting any actions to try the title to or recover the possession thereof, from which decree defendants appeal.

W.M. Colvig and A.F. Flegel, for appellants.

Davis Brower, for respondents.

MOORE C.J. (after stating the facts).

It is contended by defendants' counsel that Holt retained possession of the demised premises by agreement with and consent of S.C. Taylor, and this acquiescence in the tenant's possession by their clients' ancestor prevents the running of the statute until the lease under which he held terminated, October 1, 1884; and, such being the case, their actions for possession were commenced before the statute of limitations had run against their right of entry. Hobart Taylor having died intestate, and leaving neither wife, lineal descendants, nor father, his real property descended in equal shares to his mother, brother, and the children of his deceased sister, by right of representation, who thereupon became vested, as tenants in common, with the legal title to the real estate of which he died seised. Hill's Ann.Laws Or. § 3098, subd. 3, and section 3010. Tenants in common occupy towards each other a fiduciary relation, which demands of each fair dealing in everything pertaining to their interest in the common estate; and, while it is true that one co-tenant may oust another, the amount of evidence necessary to prove the disseisin is much greater than in cases in which such relation does not exist. 1 Am. & Eng.Enc.Law (2d Ed.) 804; Sedg. & W. Land Title, § 278; Freem. Co--Ten. § 166; Northrop v. Marquam, 16 Or. 173, 18 P. 449; Newell v. Woodruff, 30 Conn. 492. The reason for the existence of this rule is based upon the theory that, when a stranger to the title takes possession of real property, no presumptions can be invoked that he is holding under or in pursuance of a license from or contract with the owner; but the law presumes that the possession of one co- tenant is the possession of all, to overcome which a greater degree of evidence is required than in the case of an entry by a stranger to the title, with whom no contract relations have been entered into on the part of the owner; for, as was tersely said by Mr. Justice Story in Prescott v. Nevers, 4 Mason, 326, Fed.Cas. No. 11,390: "The law will not presume that one tenant in common intends to oust another. The fact must be notorious, and the intent must be established by proof." As a corollary of this rule, it follows that an entry upon real property by a person claiming to be a tenant in common can never become the foundation of an adverse possession as against his co-tenants until they have notice of his repudiation of their rights. 1 Am. & Eng.Enc.Law (2d Ed.) 805; Gross v. Washington (Tenn.Ch.) 38 S.W. 442; House v. Williams (Tex.Civ.App.) 40 S.W. 414. "When a tenant in common," says Mr. Justice Taft in Elder v. McClaskey, 17 C.C.A. 251, 70 F. 529, "claiming as such, enters upon the common land, he is exercising the right which his title gives him; and his resulting possession is presumed to be consistent with his avowed title, and therefore to be the possession of his co-tenants and himself. His co-tenants have the right to rely on this presumption until his acts or declarations are palpably inconsistent with it. The law fully recognizes that he may oust them, but he cannot do so except by acts so distinctly hostile to the rights of his co-tenants that his intention to disseise is unmistakable." Where, however, a co-tenant is distinctly notified that the tenant in possession claims to own the land absolutely, his adverse possession begins to run from such notice. Weshgyl v. Schick (Mich.) 71 N.W. 323.

Applying these rules to the case at bar, the important question presented for consideration is whether the lease of October 7, 1882, was executed by Abigail Taylor for herself and S.C Taylor with his permission, and, if so, when did she distinctly notify him that she claimed to own the land absolutely? The evidence tends to show that, the lease of the premises executed by Hobart Taylor to Holt having expired October 1, 1882, an agreement was entered into on that day between these persons, by which Holt was to lease the land at an annual rental of $300, without specifying the duration thereof, but no written lease had been executed at the time Hobart Taylor died. S.H. Holt, having been called as a witness, testified, in substance, that, on the day after Hobart's funeral, he explained to Abigail and S.C. Taylor the terms of the agreement entered into between the deceased and himself in relation to the leasing of the premises; that both expressed a willingness that the contract should be carried out, and that he should have the land; that, as he was under the impression and then considered he had to deal with Abigail and S.C. Taylor in relation to the property, as a matter of course he talked with both of them about the business, but, after he discovered that Mrs. Taylor had absolutely full control of the place, he came to a different conclusion as to whom he was obliged to deal with, and that S.C. Taylor thereafter had nothing to do with leasing or controlling the property in any manner to his knowledge; that Mrs. Taylor told him she believed she was the sole heir of her son, and, as such, was compelled to dispose of his property as he had intended; that S.C. Taylor informed him that his mother felt bad over the disposition she had made of his brother's property, and this statement, connected with the fact that he settled with and paid the rent to M.W. Wheeler as Mrs. Taylor's agent, led him to believe that she considered herself legally in possession of the property. The witness also says that he informed S.C. Taylor of his brother's desire to devise and bequeath his property to the Wheeler children, and that the deceased had requested him to draw a will to that effect; and, upon being told that no will had been prepared, S.C. Taylor remarked that it seemed rather hard, as he had assisted his brother in getting the land, and in looking after and caring for his stock, and that he felt he was especially entitled to a part of the horses. The evidence tends to show that some of these horses were delivered to him, but he wrote to M.W. Wheeler, who had just visited him, declining them, as is evidenced by the following excerpt from the letter: "Phoenix, Or., Jan. 12/83. Dear Malon: You may think I am in a great hurry to write you. Well, I have been thinking it over more and more since you left, and, the more I think, the more it troubles me to think that I contended for anything of my dear brother's estate. I do not want any of it. If my brother had wanted me to have anything, he would have said so. Now, please excuse me from...