Scales v. Doe ex dem. Otts

MoüLELLAN, O. J. Action of ejectment. Trial without jury. Judge of city court found for plaintiff and rendered judgment accordingly. It is not in any way controverted that title by muniments was in plaintiff's lessors, but the defense is that the defendants have had actual possession adverse to the paper title for ten years or more before suit brought. The entry of defendants was a trespass and without color or claim of title. It was upon them to show actual adverse possession for some period of ten years before the.action was begun. We think the trial judge was fully justified in finding that they had not shown such possession for such period on each of two phases of the evidence. First: There is no contradiction of the testimony of the witness Gregory that as the agent of Mrs. Otts lie went on the land about February 1st, 1885, and found Martha Bell living on the land, that he told her the land .belonged to Mrs. Otts, and that she must sign a- lease of the land or witness would have to commence suit to put her off; and that witness Avent back to see her the next day and she accepted and signed a lease from Mrs. Otts and therein agreed to pay one dollar and fifty cents per month rent. This lease Avas repudiated and notice given to.Gregory that Martha Bell renounced the relation of tenant of Mrs. Otts at some time in the following month, March, 1885, but on Avhat day of that month is in no. wise made to appear. These defendants claim through Martha Bell as successors to her possession. She died in August, 1894, and the defendants, her children and heirs at law, continued in possession until March or April, 1895, AAdien their possession was terminated. But 588 whether in March or April is entirely uncertain, anti', of course, if in March the day is not shown. For aught that appears their possession may have terminated on a day in March, 1895, which was less than ten years from the day in March, 1885, on which the possession of their mother took on an adverse character as to Mrs. Otts by the repudiation of the relation of landlord and tenant on the part of Martha Bell. Whether.so or not is left entirely problematical and speculative, and the onus being on the defendants in this connection they must be held to have failed to prove adverse possession for the requisite period of ten years after the abrogation of the lease under which Martha Bell held the possession in February and March, 1885. In the second place Martha Bell’s adverse possession was of less than eight years’ duration on February 11, Í893, when the act “To require parties claiming adverse possession to land to give notice thereof,” was approved. On this state of case it was essential to the defense of adverse possession that she should give the notice required by that statute. Acts, 1892-93, p. 478. There was no evidence adduced in the court below that such notice had ever been given. We have duly considered the arguments of appellants’ counsel in support of the propositions advanced by them that, first, this'statute has no application to the case because Mrs. Otts had actual notice of Martha Bell’s adverse possession and hence the end intended to be accomplished by the statute was subserved without compliance with its provisions; and, second, that the statute so far as it was intended to have operation upon an adverse possession which had begun before its passage is unconstitutional; and we do not think that either position is well taken. It is enough to say in respect of the first position thus taken that the statute is, so to speak, express to the contrary: It is therein written down that it is an essential of adverse possession that notice of it should be given in the way therein prescribed; and to hold that any other notice may be substituted for the notice thus required would be'not only to reentangle ourselves in the evils the statute was intended to remedy, but to annul the plain terms of the 589 enactment by judicial legislation. The supposed analogies relied on are inapt and misleading. It is one thing to provide that recordation of a claim shall be constructive notice of it, having the same effect as actual notice, and quite another to provide that the claim shall have no legal status or existence until it is recorded, as is provided by the statute under consideration. As to the second proposition, that the act is unconstitutional if construed to operate upon an adverse possession current at the time of its passage, it will suffice to say that adverse possession short of a period of ten years confers no right whatever and no interference with vested rights can be involved in any provision the legislature may make respecting it. It is indeed essentially tortious, incapable of being made the basis of any right. And the legislature without violence to any organic provision might either extend the period of its duration necessary to its ripening into right or barring the assertion of the original and true title, or it might strike down the whole doctrine of the acquisition of title by possession adverse to the title by muniments. Affirmed.