Cox v. Tompkinson

Eullerton, J. This is an action to quiet title to certain lots and blocks in Muzzy’s addition to the city of Spokane. The facts shown by the record are, in substance, these: On November 15, 1880, one Ilirman Muzzy made a homestead entry on a certain quarter section of land, situate near the city of Spokane, and, together with his family, consisting of his wife and five children, took up his residence thereon. On January 6, 1886, Mrs. Muzzy died, leaving as one of the heirs at law the appellant Lucy Tompkinson. In the early part of the year following, Muzzy made final [73] proofs on his homestead, and on June 2, 1887, received his final receiver’s receipt therefor. Patent was issued on May 26, 1888. Immediately after receiving his final receiver’s receipt, Muzzy platted a considerable portion of the property into streets, alleys, lots, and blocks, under the designation of “Muzzy’s Addition to Spokane Falls;” and, after dedicating in writing to the public use forever the streets and alleys shown thereon, caused the same to be filed, as provided for by law. On August 8, 1892, Muzzy, in consideration of the sum of $5,000, then loaned him by the respondent George II. Cox, executed and delivered to Oox a mortgage on the lots and blocks in question in this action, the same being a part of the addition, so platted as above stated, to secure the repayment of the loan. Muzzy thereafter defaulted in the payments provided for in the mortgage, and the same was foreclosed, and the property sold on February 6, 1894. The respondents purchased the property at the sale, receiving a certificate of sale at that time and a sheriff’s deed on February 7, 1895. Immediately after the sale the respondents entered into possession of the property, and, from that time down to the commencement of this action, have maintained such possession to the exclusion of every one else> and have paid all the taxes that were lawfully levied and assessed thereon as the same matured—a period of more than seven years. After the death of his wife, Muzzy believed himself to be the owner in fee of the homestead property. He at once assumed sole and exclusive dominion and control over it, put such of it as he had platted into lots and blocks on the market for sale, and has sold many of the lots to persons who purchased them for residence and business purposes, giving warranty deeds to such purchasers. In short, the evidence shows that Muzzy not only claimed to be the sole owner in fee of the property, but has exercised such rights over it as one usually exercises over his own. Of the lots sold, 'many of them were improved by the pur [74] chasers by the erection of costly and permanent buildings, and the streets shown on the plat were at once assumed by the people and city authorities of the city of Spokane to be public streets, and have been used by them ever since as such. The city also has improved the streets by grading them and constructing sidewalks thereon, and has laid, and permitted to be laid, water mains and gas pipes therein. The appellant Lucy Tompkinson lived with her father on the homestead claim, after the death of her mother, until August, 1887, at wThich time she married and went to the home of her husband. Shortly thereafter she became estranged from her father, and no longer visited at his home, or permitted him to visit her. She has lived, however, ever since her marriage, either in the city of Spokane or within five miles therefrom, and knew that the homestead property was being disposed of by her father to persons who purchased on the faith of his title, and knew at all times of the improvements that were being made on the property. It was shown that, as early as 1891, she took the advice of counsel as to her interests in the property, but took no active steps to make known her claims until sometime in 1898, when she executed deeds to certain parts of the property to her co-appellants herein, which were filed and placed of record without delivery. It is conceded, however, that these deeds were not executed for the purpose of conveying such title as she claimed and possessed to ■the grantees named therein, but for the purpose of clouding the title, and compelling persons claiming through Muzzy to bring actions against her. On the foregoing facts, the trial court held that the ap pellant Lucy Tompkinson, as heir to her mother, acquired title to an undivided one-tenth interest in the homestead property, on the issuance of the patent by the government to her father, but that she had been divested of such title by the operation of the statute of limitations, and was now estopped from asserting any interest therein. A decree was [75] thereupon entered quieting in the respondents the title to the property described, from which decree she and her co-defendants appeal. Under the rule announced by this court in the case of Ahern v. Ahern, 31 Wash. 334, 71 Pac. 1023, 96 Am. St. 912, the appellant Tompkinson undoubtedly acquired, as heir to her mlother, an undivided one-tenth interest in the land in dispute, on the acquisition of the legal title thereto by her father, so that the sole question to be determined here is, has she lost that interest by failing to assert it within the. statute of limitations? It seems to us there can be but little question that she has. Her counsel do not deny that one tenant in common may hold the common prop>erty adversely to another, even- though the cotenants bear the relationship of father and daughter, but they contend that possession by one cotenant does not become adverse to another until that other is definitely notified by the co-tenant in possession that he disputes and disavows, any claim of interest made by the other; and counsel argue that the facts fail to show that any such notification was given in this. case. But we think counsel make too broad a statement of the rule. As the possession of land, held by a common title by one tenant in common, does not imply hostility, as does possession by a stranger to the title, stronger evidence is required to show an adverse holding by a tenant in common than by a stranger, but the evidence- need not differ in kind. Actual verbal or written notice is not necessary to start the statute funning in such a case. If there be outward acts of exclusive ownership by the tenant in possession, of such a nature'as to preclude the idea of a joint owner ship^ brought home to the cotenant, • or of so open and public a character that a reasonable man would discover it, it is sufficient. 1 Cyc. 1071, et seq. The facts in the. case before us we think show conclusively that the- possession of Hiram Huzzy of [76] the homestead property was- at all times adverse to the appellant. He not only had and maintained exclusive control and dominion over it. as long as he retained the title, but his outward acts with reference thereto were inconsistent with any other idea than that of sole ownership. We think, too, they were of sufficient publicity and notoriety to put the appellant upon notice of his claim. It would be difficult to give more publicity to one’s claim of ownership and title to real property than to plat the same into lots and blocks as an addition to a city, and sell and convey such lots by deeds of warranty. But if the general statute of limitations could not be successfully pleaded, the respondents can claim title under sections 5503 and 5504 of the code. Their entry into possession under the title acquired at the foreclosure sale was sufficiently adverse to start the statute running. Cain v. Furlow, 47 Ga. 674. And their possession and payment of taxes for a period of seven years conferred title on them under the sections cited. Philadelphia Mtg. & Trust Co. v. Palmer, 32 Wash. 455, 73 Pac. 501. We conclude that the respondents have title to the property in question, and are entitled to have such title quieted in themselves. The judgment appealed from will therefore stand affirmed. Mount, O. J., Dunbar, and Hadley, JJ., concur. Budkin, Boot, and Crow, JJ., took no part.