Craven v. Craven

Erwin, J.

This suit was commenced by appellee August 18,1910, for the recovery of certain real estate in Hendricks County, with rents and profits; to quiet title thereto, and asking for partition. The appellee’s claim is based on a devise contained in a will, alleged to have been made September 20, 1864, the maker of which died, December 18, 1864, the will never having been probated or offered for probate until April 14, 1909, forty-four years after its execution. Appellee’s complaint is in four paragraphs, all of which aver in different terms, title to the land in ques *555 tion in appellee, and allege an adverse, but unfounded claim by appellant. The appellant answered by general denial, and the twenty-year statute of limitations, and asked that her title be quieted. There was a trial by jury and a general verdict in favor of appellee, with answers to certain interrogatories; on which general verdict the court, after overruling a motion for judgment on the answers to the interrogatories, adjudged that appellee was the owner of the undivided one-third of the land in question, quieting his title thereto, and adjudging partition and costs of the action.

The second assignment of error presents the question as to whether appellee’s claim to the real estate is barred by the statute of limitations. It is claimed by appellee, and it is shown by the answers to interrogatories, that in the year 1859, one Jeremiah Barker died, seized in fee of 160 acres of land, which is the land in controversy (appellee claiming to be the owner of one-third thereof) ; that Jeremiah Barker left surviving him his widow, Jane Barker, Jasper Barker, a son, and Adaline Barker, a daughter, who is the appellant in this case. On November 13, 1862, appellant married W. M. Craven and thereafter with her mother, her brother Jasper and her husband continued to live on this land. The appellee is the oldest son of Adaline Barker Craven and "W". M. Craven and was born on this land November, 1863 and was named for his uncle Jasper. Jasper Barker enlisted in the army with others of the neighborhood, among whom was Enoch Seotten and P. M. York, both of whom lived near the Barkers. Jasper Barker was wounded in battle and in September, 1864 was in a hospital at Marietta, Georgia. Prom there he was sent home on furlough. He died at his home on the land in controversy, December 13, 1864. Enoch Seotten was also home on furlough when Jasper died and had visited him two or three times during his last illness. After the war Seotten and York returned to that vicinity and lived there until 1879, when York re *556 moved to Kansas, where he died some years ago. Seotten continued to live in that neighborhood until 1909. Jasper Barker’s mother and appellant both believing that he had died intestate continued to live on the land, treating it as their own, until the mother died in 1891; since which time appellant has continued to reside thereon, claiming to be the sole owner thereof. The appellee lived with his mother, the appellant, until he was twenty-four years old, or until 1887. Neither he nor Jane Barker, nor appellant had any knowledge of the existence of any will made by Jasper Barker until in the spring of 1909, when as appellee claims, his uncle Jasper Barker, although having been dead for more than forty-four years, appeared to him in a vision or dream, and told him of the existence of a will and that it was in possession of Enoch Seotten, who still lived in the neighborhood, and who upon request of appellee produced and gave him the will. It was presented for probate on April 14, 1909, on the testimony of Enoch Seotten, whose name with P. M. York appeared as witnesses to its execution forty-four years, six months and twenty-four days after its execution. York died many years prior to its probate, and Seotten soon thereafter. This suit was begun August 18, 1910, forty-four years, eight months and five days after the death of Jasper Barker.

The question for the decision of this court is, whether under the facts established and found by the jury in its general verdict, and by the answers to interrogatories, the statute of limitations bars the appellee’s right to recover. It is claimed by the appellant that the twenty-year statute of limitations controls in this case and that the statute begins to run from the death of Jasper Barker, December 13, 1864. Appellee concedes that while the statute of twenty years applies, that it did not begin to run until the probate of the will, April 14,1909. The question as to when a will may be probated, after its execution, or whether the general *557 statute of limitations applies has never been decided by this court.

1.

2.

3.

It is well settled by the decisions of this and the Appellate Court that an occupant, who by mistake or by intention takes actual, visible and exclusive possession of another’s land and holds the same for twenty years as his own, acquires a title in fee simple. Rennert v. Shirk (1904), 163 Ind. 542, 72 N. E. 546, and numerous cases cited. Adverse possession consists in the actual, open, notorious, exclusive and continuous possession of lands under a claim of right. Rennert v. Shirk, supra, 545. To prove a “claim of right” oral declarations are not necessary. It may be inferred from the manner of occupancy and positive acts of ownership, .inconsistent with the ownership of the true owner, and from erecting, repairing, occupying or leasing buildings thereon. Rennert v. Shirk, supra, 546, 547; Southern Ind. R. Co. v. Norman (1905), 165 Ind. 126, 132, 74 N. E. 896; Mull v. Williamson (1906), 166 Ind. 537, 544, 78 N. E. 76. Where one is shown to have been in possession of land for a period of limitation apparently as owner, and such possession is not explained or otherwise accounted for, it will be presumed to have been adverse; but the presumption may be rebutted by proof that the possession, in its origin, was not adverse, but permissive. 3 Kerr, Real Property 2296, 2297; 2 Pingrey, Real Property §§1163, 1164; Tiedeman, Real Property (2d ed.) §699; Rennert v. Shirk, supra, 549.

4.

An entry upon land with the intention of asserting ownership, and continuing in the open and exclusive possession thereof, exercising the usual acts of ownership under such claim, without asking permission, and in disregard to all other claims is sufficient to make the possession adverse. Such possession continued uninterruptedly *558 for twenty years or more will establish, title to the extent that the possession is actual and exclusive. May v. Dubbins (1906), 166 Ind. 331, 334, 77 N. E. 353, and cases cited; Lucas v. Rhodes (1911), 48 Ind. App. 211, 94 N. E. 914; Davis v. Waggoner (1908), 42 Ind. App. 115, 119, 83 N. E. 381, 84 N. E. 1105; Pittsburgh, etc., R. Co. v. Jellison (1908), 42 Ind. App. 628, 86 N. E. 501. The answers to the interrogatories establish the fact that appellant and her mother from the death of Jasper Barker, in 1864 until the death of the mother in 1891, actually occupied said land and openly exercised acts of exclusive ownership of said lands, including the making of improvements, the cultivation of the same, and the payment of taxes; and that from the death of the mother in 1891, appellant has continued to occupy the same lands under the same conditions. This occupancy under the rules above stated makes the title absolute in the appellant, regardless of whether any oral declarations were made that they were occupying the land, under a “claim of right.” Rennert v. Shirk, supra, 546. The answers to interrogatories disclose the facts that when Jasper Barker died the mother and appellant, his sister, were his only heirs at law and that they took the land believing that Jasper Barker died intestate; and that his mother died before the will was discovered, and never knew that such a will was in existence. Both the mother and sister occupied the land believing that they were the rightful owners of the same and under all the rules ever declared, defining adverse possession, thereby acquired title thereto as against the whole world including appellee, regardless of the fact that he recently discovered that he had been made a beneficiary under the will of his uncle to the extent of the one-third interest in the lands.

*559 5.

6.

*558 If it could be argued that the appellee’s, right to bring his action did not accrue until he became of age, then he should have brought it in 1886 for it is shown that he was born in 1863, and more than twenty years have elapsed since *559 he became of age. The bare fact that he had no knowledge of his rights to the land would not prevent the statute running. Schultz v. Board, etc. (1884), 95 Ind. 323, 325, and cases cited. The Appellate Court in the case of State, ex rel. v. Walters (1903), 31 Ind. App. 77, 82, 66 N. E. 182, 99 Am. St. 244, lays down the rule that “The fact that a person entitled to an action has no knowledge of his right to sue, or of the facts out of which his right arises, (our italics) does not prevent the running of the statute, or postpone the commencement of the period of limitation, until he discovers the facts or learns of his rights thereunder.” 25 Cyc. 1212 and cases there cited. “Statutes of limitations are now generally looked upon as statutes of repose. They rest upon sound policy, and tend to the peace and welfare of society, and they are to be deemed just as essential to the general welfare and wholesome administration of justice as statutes upon any other subject.” High v. Board, etc. (1884), 92 Ind. 580, 589.

"While it may have been the intention of the uncle to bestow upon the appellee, the real estate of which he died possessed, yet if he had the power to appear to the nephew and disclose the existence of the will in 1909, he is the only one who can be said to be to blame,, and his failure to make the facts known for forty-five years has effectually barred the nephew’s right to recover. This must be the law, else no title would be secure, however long it may have been occupied under a “claim of right”. In all eases of title by prescription someone may have had the record title during all the time that the title by prescription was ripening and be ignorant of that fact. And while an injustice may be done in some instances, it is better for the sake of the peace and welfare of the State, that the rule should prevail, that adverse possession for twenty years will ripen into a title in fee simple.

This judgment is reversed with instructiofis to the court to *560 render judgment on the answers to the interrogatories of the jury, in favor of appellant on her cross-eomplaint, quieting her title to the real estate, and for costs of action.