Dignan v. Nelson

¶1This is an action in ejectment, instituted August 30, 1899, by the heirs of Dominick Dig-nan, deceased, to recover possession of lots 9, 10, i’l, 12, and 13, block 6, the same being situate in Park City, Utah. The plaintiffs Dominick P. and Joseph L. Dig-nan were minors, aged, respectively, twenty and eighteen years when this suit was brought. Emma McGill is the widow of Dominick Dignan and guardian of the minors. The defendants Eliza and Lila S. 'Nelson are the widow and daughter, respectively, of John A. Nelson, deceased, and the firm of Pickett & G-reeg were their tenants, all in possession of the property. The complaint alleges that the plaintiffs are the owners in common, in fee, and entitled to the possession, of the property, and that the defendants are in possession, and are unlawfully withholding the same from the plaintiffs. The answer denies these allegations and sets up three affirmative defenses, in substance as follows: That on August 28,1880, John A. Nelson conveyed said land by warranty deed, to Dominick Dignan, but that the deed was, in fact, a mortgage to secure payment of $1,000, which, it is averred, was afterwards paid, and that the mortgage deed should have been discharged; second, that an action of ejectment, brought May 13,1883, by the administrators of the Dignan estate against Eliza Nelson for possession of the property in dispute, was compromised, and that judgment should have been entered for the defendant, but that the same was not so entered; third, that the plaintiffs are barred by the statute of limitations.

¶2The first and second defenses were not proven, and .as to them the trial court found adversely to the defend*189ants. Those defenses áre therefore eliminated from the ease, and will not receive further consideration.

¶3The decisive question on this appeal, then, is, are 1 the plaintiffs barred by the statute of limitations? The statute applicable here is found in 2 Comp. Laws 1888, sec. 3137, subdivision 3 of which, so far as' is material to this decision, reads: ‘ ‘ That in no case shall adverse possession be considered established, under the provisions of any section or sections of this Code, unless it shall be shown that the land has been occupied and claimed for the period of seven years continuously, and the party or persons, their predecessors and grantors, have paid all the taxes, territorial, county or municipal, which have been levied and assessed upon such land according to' law. ’ ’

¶4It will be noticed that, under this provision, no adverse possession can be established, unless the land shall have been occupied and so claimed for a period of seven years continuously, and the taxes, levied and assessed thereon according to law, paid by the party claiming adversely, and, “in order to constitute an effective adverse possession, there must be an ouster of the real owner, followed by an actual, notorious, and continuous possession of the adverse claimant.” 1 Am. and Eng._ Ency. of Law (2 Ed.), p. 789. To acquire title by adverse possession, therefore, under our statute, the possession must not only be continuous for the time prescribed, but, under well-settled law, must be actual, open, and notorious, with an intention on the part of the claimant to claim the title as owner, and against the rights of the true owner; and in addition to all this, the adverse claimant must pay all the taxes which are lawful charges upon the land. "Where, then, title to 2 land is claimed by adverse possession, the burden of proving that 'all these requisites have been complied with rests upon him who asserts the claim. Hence in this case the burden was upon the defense to show a compliance with every material requisite of adverse *190possession under the statute. This the appellants contend the defendants .failed to do.

¶5It is insisted that they failed to show that they paid the taxes, occupied all the lots or land, that the true owner was ousted, and that their possession was hostile to him. The findings of fact upon these points, it is claimed, are indefinite and uncertain, and do not sfipport the judgment. The findings, material here, read as follows:

“ (8) That ever since the death of said Nelson, in 1880, the defendant Eliza Nelson and the defendant Lila S. Nelson, in person and by their tenants, have remained in* open, notorious, and exclusive adverse possession of all of lots 9, 10, 11, 12, and 13, of said block 6, and have claimed the same adversely to said plaintiffs and each of them, and to all the world, and have during said time paid all the taxes levied against said property in the name of said Eliza Nelson, but part of the time, however, there was a double taxation, the same property being taxed also to the Dignan estate; but during none of said time have the plaintiffs, or either of them, either in person or through or by any tenant, been in the possession of said lots or any part thereof.

“ (9) That for more than seven years last past, to-wit, for twenty years, and ever since the death of said John A. Nelson, the said Eliza Nelson and Lila S. Nelson, in person and by their tenants, have been in the open, notorious, and exclusive adverse possession of all of said lots, and have paid all the taxes thereon, adversely to said plaintiffs and each of them, and without privity of estate in any manner with them. ’ ’

¶6It is obvious that in these findings the ultimate facts sufficiently appear, and they show an open, notorious, adverse possession of all the lots since the year 1880, a period of time longer than that required by the statute. They also show payment of all the taxes levied against the property, and, according to the findings, the possession of the defendants was an “exclusive adverse possession” of all the lots, and consequently the plaintiffs *191must have been ousted. Indeed, this appears from plaintiff Emma Dignan McGill’s sworn complaint, filed May 12, 1883, where, referring to these and other lots, it was alleged that ‘ ‘ on February 17, 1883, the defendants entered thereon and ousted and ejected plaintiffs.” Not only do these findings show a sufficient compliance with the requisites of the statute by the adverse claimants, hut, upon careful examination of the evidence,. 3 and without referring to it here in detail, the proof, in our opinion, amply sustains the findings, and, as to adverse possession, the findings support the judgment.

¶7The appellants further insist, however, that the court erred in holding that the minor heirs are barred, by the statute. The question whether a minor heir is barred, where the administrator of the intestate’s estate is barred, was before us in Jenkins v. Jensen, 24 Utah 108, 109, 66 Pac. 773, and we. there held that, 4 “where an administrator neglected to bring an action to recover real property within the time prescribed by the statute, the heir of the intestate was also barred, though he was a minor at the accrual of the action in favor of the administrator.” It was there further held that “where an administrator neglects to bring a suit to recover real property within the prescribed period of limitation, whereby the minor heir is barred, the heir has a right of action against the administrator and his bondsmen.” We perceive no good reason to depart from the doctrine of that ease, and must, therefore, regard it as controlling authority on this point herein notwithstanding the argument of counsel for the appellants against its correctness. In this case the plaintiff Emma McGill was not only the .administrator of the intestate’s estate, but was also the guardian of the minor heirs, and hence, she, as their representative and trustee, being barred, as we have seen, such heirs are likewise barred.

¶8The appellants also complain of the action of the court in taxing costs, and, among other things, insist *192that the supplemental cost hill was erroneously 5 permitted to he filed. The respondents having filed their first cost hill within time, the court had the right to permit them to file the supplemental hill as an amendment. They did not necessarily exhaust their right hy filing the first hill. This court, in Smith v. Nelson, 23 Utah 512, 514, 65 Pac. 485, where a similar question was presented, referring to the filing of the second hill, said: “We perceive no error in this. The second bill simply embraced the first with amendments, so as to make it conform to the requirements of law. The action of the court was equivalent to permitting an amendment, and the costs were therefore properly taxed under the second hill.”

¶9In this case it appears, however, that some items of costs which accrued without the State of Utah, in foreign jurisdictions, were taxed according to the 6 laws of such jurisdictions, whose provisions for fees appear to be different from our own, and that such foreign laws were not proven. This was improper. Under such circumstances costs must he taxed according to the fee hill provided hy the laws of this State. In such case, where the laws of the foreign jurisdiction are not in evidence, they must he presumed to he the same as those of the forum, and the lex fori must govern. American Oak Leather Co. v. Union Bank, 9 Utah 87, 33 Pac. 246.

¶10The case must, therefore, he remanded, with directions to the court below to tax the costs according to the laws of this State, and when they are so taxed the judgment must stand affirmed, with costs.

¶11It is so ordered.