Womble v. Pike and Murphy

Opinion of the court by Gillette, J.: If the petition set forth does- not state facts sufficient to constitute a cause of action under section 589 of our code of civil procedure which provides that “An action may be brought by any person in possession, by him *127 self or tenant, of real property, against any person who claims an estate, or interest therein, adverse to him, for the purpose of determining such adverse estate or interest.” the judgment of the trial court should be affirmed, for it is apparent that under the allegations of the petition the .plaintiff is not entitled to injunction as prayed for. The plaintiff, however, in addition to her prayer for injunction asks to have determined the adverse estate and interest of the defendant in and to the lands mentioned and described. For the purpose of the demurrer the allegations of the petition are admitted, which are in substance, that the plaintiff is the owner in fee simple of the land, and was in possession' of the same as the homestead of herself and minor children at the time certain bankruptcy proceedings were commenced against her husband, out of and through which the defendant claims an interest in the land adverse to her. Whether she may maintain such action under the statute above quoted, to have determined the adverse estate of defendant, is dependent upon the question as to whether or not she was in possession of the premises at the time of bringing this action. Counsel for the defendant in error say: “See. 4787 of the statute (above quoted) provides that the action may be brought bjr anjr person in the actual possession of the land, or so the statute has been construed by the court.” The statute does not use the language “Actual possession.” The language is, “An action may be brought by any person in possession.” The word actual has been read into the statute in the decision of courts, probably in each in *128 stance in view of the peculiar facts in the case under consideration. If it is meant by the use of the language “Actual possession” that in order to be in such possession of land as to be enabled to maintain an action concerning the title, a person must be in the present physical possession of it, then we cannot agree with such construction of the statute, for, we think, that in a ease like the present where a person has a fee simple title to real estate, and has been in the occupancy thereof as a homestead, and has vacated such occupancy for a temporary and legitimate purpose not inconsistent with a further claim of homestead rights thereto, and no person has reduced the premises to actual occupancy under an adverse claim of title, continues in the possession within the meaning of the statute referred to, and may maintain an action to quiet the title thereto. Temporary absence does not vacate possession of real estate. The word possession as used in the statute is not equivalent to the word occupancy used in the same connection, and yet it has been repeatedly held in matters of homestead right where such rights depend upon occupancy of the premises, that temporary absence is not an abandonment of such occupancy, much less could it be maintained that temporary . absence was an abandonment of possession to the extent of depriving a person of a right to bring an action to remove a cloud from title. The supreme court of the state of Kansas has repeatedly used the word “actual” in connection with possession in this class of cases, and in Cartright v. McFadden, 24 Kan. 473, used the following language touching the question of actual *129 possession in determining a right to maintain an action under this statute: “The next question is whether the evidence introduced sufficiently shows that the plaintiff had the actual possession of the property. The court below held that it did. The evidence upon the subject is as follows. The plaintiff, as a witness, testified: “I am and at the time this action was brought wa,s in possession of the lots in controversy. The lots lie and front on the west side of Buchanan street. Fifteen of them are south of Twelfth street and seven of them north of Twelfth street, and they are consequently not all in one block. 1 went upon the lots and took possession. I had them plowed around. I had those south of Twelfth street plowed around, and also those north of Twelfth street. I have been upon the lots several times, and have offered them for sale, and have made sale of some of them. I had a conversation with Cartwright before this suit was commenced. I told him I was in possession of the lots, and he did not dispute it. I have paid the taxes on the lots since I bought them.” And on cross-examination he said: “T have put no buildings or fence on the lots. 1 have done nothing further in regard to getting and keeping them than I have stated.' The lots were and are entirely unimproved, except as T have stated, and when I went to take possession did not look as if they had ever been improved or inclosed. “We think the foregoing evidence is sufficient to authorize the finding made by the court below that the plaintiff was in the actual possession of the property. Gilmore v. Norton, 10 Kan. 492; Giles v. Ortman, 11 Kan. 59; and therefore we cannot set aside such finding.” Examining the petition under consideration we find the facts admitted by the demurrer to be, that the plaintiff is *130 an abandoned wife, and the head of a family of three minor children, aged 16, 14 and 12 years respectively, whom she is trying to educate, to accomplish which she removed temporarily from the land in question to Oklahoma City about the 10th of September, 1905, with intent to return thereto as soon as she could give them the rudiments of a common school education. That she was in the occupancy of said land as a homestead when an involuntary proceeding in bankruptcy was commenced against the estate of her husband, out of and by reason of which proceedings a deed has been authorized and executed to her said land to the defendant, T. S. Pike, which is a cloud upon her title. That the defendant, Pike, intends to reduce said lands to. his possession. That defendant has, in fact, no title to the land, and prays to have this fact adjudicated and determined, and defendant’s claim under such deed cancelled and held for naught. She does not say that she is in possession of the land, but states the facts' from which the court may determine such question and this, we think, is sufficient. And from the facts so pleaded we are of the opinion that at the bringing of the action she was in such possession as to entitle her to maintain this action, and that, therefore, the demurrer was wrongfully sustained. The judgment of the district court is reversed, and said cause remanded with instructions to vacate the judgment sustaining the demurrer and enter an order overruling the same. Pancoast, J., who presided in the court below, not sitting; all the other Justices concurring.