Teabout v. Daniels

¶1— I. Appellant complains of the giving of certain instructions, and of the refusal to give those asked. ■

¶2The special findings of the jury render unnecessary a separate consideration of many of the errors assigned.

¶3The jury returned in their special verdict that Andrew Stewart entered upon the land in- dispute under a claim of title; that he and his heirs and plaintiff claimed the ownership of said property, with possession and occupation thereof, for nineteen years prior to the commencement of this suit; that it has been assessed to Stewart and his heirs since 1855; that Andrew Stewart died in actual o'ccupation of the premises, and left his widow and heirs in possession 'thereof; and *160that they and plaintiff continued in possession thereof, claiming the same for ten years prior to the commencement of this suit; that defendant has not claimed the title or possession of the premises of Andrew Stewart or his representatives at any time within ten years before the commencement of this suit; that the Stewarts exercised acts of ownership over the land in goo<j faith, believing all the time that they had a right to the land, and that this possession was-in hostility and adverse to the rights of the defendants.

¶4The jury 'have thus found specially that there was a continued possession for more than ten years, in good faith, under a claim of title hostile and adverse to the rights of defendants.

¶5i. real estate: adverse possession: pretitle. A possession necessary to the presumption of a title contains but one element in addition to these which the jury .... . , .. . . have found m their special verdict to exist, to-wit: it must be visible and notorious. See Angelí on Limitations, 5th edition, chapter 31, Booth & Graham v. Small, 25 Iowa, 177, and cases cited.

¶6The court, however, instructed the jury that “ the possession necessary to be exercised over the land is an ojien, notorious possession.”

¶7The general verdict for jilaintiff, therefore, involves the further determination of the existence of this material fact.

¶8And this finding is fully sustained by the evidence.

¶9II. Defendants assign as error the refusal to give, at their instance; the following instruction:

¶10% ._._. •“ Unless Daniels had knowledge or can justly be presumed to have had knowledge that the Stewarts, or some or one of them was in possession of the land, your verdict must be in Daniels’ favor.”

¶11Whilst there are dicta, and jiossibly decisions which tend to support this instruction, yet, we believe reason and the weight of authority to be against it.

¶12If the above be the law, a party might purposely keep himself in entire ignorance of the situation of his realty, and thus prevent adverse possession however notorious, and long continued from ripening into a title against him.

¶13*161In this case the evidence shows the defendant resides in Vermont. He may never have been upon the land, or had any agent near it. He testifies that he knew -nothing of any possession being had of the land until this suit was commenced.

¶14If this instruction had been given, the jury might have found, as a fact, that defendant did not know of the possession.'

¶15And if they had so found the fact, there could be no presumption that he had knowledge, no ■ matter-how open and notorious the possession had been. In other words, there can be no presumption of a fact, in direct opposition to what the proof shows to be the fact.

¶16The true rule is that the possession which raises a presumption of title must be open, visible, and notorious, and not clandestine or hidden. "When the possession is shown to be of such ojien character, the person against whom it is maintained, as a matter of law is jiresumed to know it, or to be negligent in not knowing it, and in either case he is bound by it. See Close v. Samm, 27 Iowa, 503.

¶17___. color of title, III. Ajipellant claims that the Stewarts, at the most, were in possession merely under claim of right, and not unfler color of title, that the evidence at best shows that but one-half of the forty has been cultivated for the statutory period; that where one enters under mere claim of right, Hie ouster extends no further than he occupies, cultivates, incloses, or otherwise excludes the owner from, and that as the evidence does not show where the half cultivated, and inclosed is situated, there is a failure of proof, and the court should have set the verdict aside and granted a new trial. But there are other modes' of acquiring color of title, than through a paper conveyance. The jury have found sjiecially that Andrew Stewart died in possession of the premises in dispute, and that the possession devolved upon and was continued by his heirs. The possession of the heirs, therefore was under color of title. Hamilton v. Wright, 30 Iowa, 480.

¶18And there are other modes of possession than cultivating and inclosing. * '

¶19*1624__pos_ . session. The evidence tends to show that the Stewarts erected a dwelling house, and. granary upon the forty in controversy, that they inclosed and cultivated about half of it, and that from the part not cultivated, which was timber land, they cut wood.

¶20This evidence justified the jury in finding that there was the exercise of such acts of ownership over the entire forty, as were necessary to enjoy the ordinary use of which it was capable in its then condition, and that the entire tract in question was shown to have been in the possession of the plaintiff and his grantors. Booth & Graham v. Small, 25 Iowa, 178.

¶21In view of the fact that the special findings are conclusive of most of the questions involved, we deem it unnecessary to consider separately the other errors assigned.

¶22Affirmed.