Moser v. Granquist

Opinion by Mr. Justice Allen M. Stearns, The question presented is whether a wife (divorced in an ex parte foreign divorce proceeding) has established title to real estate by adverse possession against her husband and his grantee. The action is in ejectment. By agreement it was heard by the court without a jury. The facts, about which there is.no dispute, may be summarized as follows: John Granquist, plaintiff’s predecessor in title, and Bose Granquist, the defendant, were married in 1908. The husband purchased the dwelling in question, *304 located in White Mills, Wayne County. Title was taken in the husband’s name on June 8, 1922. Immediately thereafter the husband took his wife and children upon the premises which they jointly occupied as a home until October 1922. On that date the husband, leaving his wife and children in the premises, went to Ohio in search of employment. The husband never returned to his habitation. On October 29, 1934 he secured an ex parte decree in divorce from his wife. The wife has continued to reside in the premises. On November 7, 1947, the husband sold and conveyed the premises to the plaintiff. No allegation is made that the conveyance was made collusively by the husband to the plaintiff in fraud of defendant’s marital rights. In the action of ejectment defendant claims that she acquired a valid title to the real estate by adverse possession against her husband. The court entered a verdict for the plaintiff. This appeal followed. To acquire title to land in Pennsylvania by adverse possession the possession must be “actual, continued, visible, notorious, distinct and hostile” and be persisted in for 21 years or more: Hawk v. Senseman, 6 S. & R. 21; Act of March 26, 1785, 2 Sm. L. 299, section 2, 12 PS, 72 et seq.; Miles v. The Pennsylvania Coal Company, 245 Pa. 94, 91 A. 211; Kossell v. Rhoades, 272 Pa. 75, 116 A. 56; Parks et al. v. Pennsylvania R. R. Co., 301 Pa. 475, 152 A. 682; Philadelphia Electric Co. v. Philadelphia, 303 Pa. 422, 154 A. 492. When defendant) with her husband, went upon the property, the possession was not hostile to him. At that time, and while she remained his wife, the defendant wife possessed a contingent claim, right or expectancy in her husband’s real estate which could ripen into an estate in case the husband died first: Briegel v. Briegel et al., 307 Pa. 93. Cf. Hunt et vir. v. Mestrezat, 361 Pa. 415, 418, 65 A. 2d 389. Where the possession, at its inception, is permissive the statute will not begin to run *305 against the real owner until there has been some subsequent act of disseizin or open disavoioal of the true owner’s title, and from that time one claiming title by adverse possession, must thereafter be in continuous, open, notorious, exclusive and hostile possession for the statutory period: Citizens Electric Company v. Susquehanna Boom Company, 227 Pa. 448, 76 A. 203; Campbell v. Duggan-Rider Co. et al., 284 Pa. 19, 25, 130 A. 296; Philadelphia Electric Co. v. Philadelphia, 303 Pa. 422, 429, 154 A. 492; Medusa Portland Cement Company v. Lamantina, 353 Pa. 53, 57, 58, 44 A. 2d 244; Hanley v. Stewart et al., 155 Pa. Superior Ct. 535, 39 A. 2d 323. The burden is upon the person claiming by adverse possession to establish when his adverse holding began: Johns v. Johns, 244 Pa. 48, 52, 90 A. 535. Defendant contends that she has occupied the premises adversely to her husband since he moved from the home in October, 1922. We have reviewed the testimony and are unable to discover when, if ever, the character of defendant’s possession became hostile to her husband’s title. Nothing can profitably be added to what the learned judge below said in his opinion: “An examination of the testimony discloses that the defendant wrote her husband, plaintiff’s predecessor in title, requesting that he put water in the house. The defendant again testified that she wrote John Granquist ‘a year after he went’ about the bad condition of the roof on the house, and that her son wrote plaintiff’s predecessor in title ‘more than ten years ago’ about the same matter. And a further examination of the testimony reveals, by the defendant’s own admission, that ‘a small roof was put on the kitchen’ by John Granquist, plaintiff’s predecessor in title, possibly ‘between 1930 and 1935’. Throughout the testimony the defendant and her witnesses have admitted that no improvements or major repairs had been made to the premises by the defendant, though by the same testimony it was admit *306 ted that the premises required such major essential repairs.” Defendant further contends that since her husband installed her in the premises as their joint home and subsequently deserted her, neither the husband nor a purchaser from him is entitled to eject her, because of her marital right of support. A husband, who has deserted his wife, may not maintain ejectment against her to recover possession of his premises which he established as a common home at the time of the marriage. Defendant relies upon Harris v. Harris, 16 D. & C. 33. But in the present case the action in ejectment was not brought by the husband. It was instituted by a purchaser for value from the husband. There was no allegation or testimony that the purchaser was not a purchaser for value from the husband or was acting in collusion with the husband to defraud the defendant in her marital rights: Bouslough v. Bouslough, 68 Pa. 495, 499; Armstrong v. Connelly, 299 Pa. 51, 149 A. 87; Kirk v. Kirk et al., 340 Pa. 203, 16 A. 2d 47; Cancilla v. Bondy et al., 353 Pa. 249, 252, 44 A. 2d 586. The learned trial judge correctly refused to pass upon the validity of the Ohio divorce. He said: “If the divorce should be void and of no legal effect, at most it would give to Rosie Granquist a future right in the property if and when John Granquist should predecease her. At that time her interest in the property, as widow, would come into existence under the intestate laws. This fact does not entitle her to the present right of possession so we will not pass on the question in these proceedings.” The defendant has been unable either to establish a title by adverse possession or the right to continue to occupy the premises. The judgment is affirmed.