Stuart v. Meade

Kelly, J., after making the foregoing statement, delivered the opinion of the court. It must be, and as we understand it is, conceded as a legal conclusion from the foregoing facts that, from 1871, the date of the line fence agreement, down to 1897, the date of the conveyance from Louisa M. Webb to Emily J. Meade and her children, including the eighteen years during which Mrs. Meade’s husband looked after the farm for Mrs. Webb, her possession of the land now in controversy was consistent with, and not adverse to, the true title. In our opinion the defendants are in no better position in this respect than was their grantor. Mr. Raleigh Minor, in his work on Real Property, says: “Finally it is to be observed that if the occupant’s possession was begun in privity with the rightful claimant, a higher degree of notoriety must attach to the possession than would be demanded if there were no such relation between the parties, for the privity is itself an explanation of the possession, and the rightful owner is not bound to seek another, unless notice of the fact of the disloyal severance of the privity be brought home to him. Hence, in such case, there must be a clear, positive and continuous disclaimer and disavowal of the title, of the rightful owner, and the assertion of an adverse right brought home to the adverse claimant. The possession must have become tortious and unlawful by the disloyal acts of the party in possession, so open, notorious and continued as to show — 758 — fully and clearly the changed character of his possession and notice thereof to the rightful claimant.” 2 Min. Real Prop., sec. 1033. Hulvey v. Hulvey, 92 Va. 182, 186, 23 S. E. 233; Thompson v. Camper, 106 Va. 315, 317, 55 S. E. 674. It is contended by counsel for the defendants, and that contention was sustained by the trial court in its instructions to the jury, that their rights could not be affected in any way by the line fence agreement, unless they had aetual notice of it. This view ignores the right of the true owner to presume that the original character and intent of a possession begun in privity remains unchanged until something has been done which will bring home to him notice “of the disloyal severance of privity.” A mere transfer of a record title, with no material change in the character of the possession is not alone sufficient to do this, and certainly not where, as in this case, the conveyance is made to a daughter whose husband has for 18 years been the active representative of a possession which began and continued up to the date of the conveyance in privity with the true title. The theory contended for by the defendants and accepted by the circuit court, places the burden on the wrong shoulders and requires the true owner to presume that a naked possession, assumed under the circumstances existing in this case, is adverse and wrongful. The presumption of law is just the reverse. The great weight of authority is to the effect that mere possession will be presumed to be in subordination to the title of the true owner, that every presumption should be made in favor o'f such title, and that a possession which in its beginning was consistent with the possession of the true owner will not be rendered adverse by the lapse of any length óf time unless there be such a change in — 759 — the character of the original possession as will charge the true owner with notice. 1 Cyc. 1145; 1 C. J. 264. 2 The presumption to which we refer is one incorporated in many of the statutes of limitation, and which we think is generally implied, whether stated in direct terms or not, and is to the effect that possession is always presumed to be held in subordination to thé legal title. By reason of this presumption, the mere holding of the lands of another, however long continued, is not sufficient evidence of title by prescription, but must be aided by other testimony, from which the inference may reasonably be drawn that such possession was maintained in hostility to the title of the true owner. The presumption ought to apply with special force when it appears probable that possession of lands adjacent to a boundary line was taken through ignorance or inadvertence, and maintained without thought of disseising the owner.” Finch v. Ullman, 24 Am. St. Rep., note pp. 389-390. The only case to which counsel on either side have cited us, and the only one which we have found, specifically deciding the question of notice arising here is the case of Irvine v. Adler, 44 Cal. 559. In that case O’Connor and Wainright bought adjoining lots which they sebsequently sold. Before making sale, they “entered upon their respective tracts, and agreed to measure off wdth a tape fine their respective lots, put up temporary fences, and that, when the true lines should be ascertained, each should have his land according to the true lines; and- they accordingly measured the lots with a tape line, and each entered upon, and they and their grantees have since occupied the parcels of land according to the measurements thus made. The grantees of O’Connor had no knowledge of the agreement in respect to the measurement — 760 — of the lots. The true measurement shows that a narrow strip of the land conveyed to Wainright is included within the lines of the O’Connor lot as run by the ‘tape line measurements.’ ” The court in that case, after stating the facts here pertinent as set out above, said further: “In respect to the defense of adverse possession, it is sufficient to say that a possession commenced as in this ease is not adverse and does not become so until there is a distinct repudiation of the agreement under which the possession was taken. The grantees of O’Connor having simply succeeded him in the possession of that to which they acquired no title by their deeds, occupy no better position than he did.” There is another aspect of this case which, by reason of the facts as recited, is more or less related to and blended with the one already discussed, and which seems to us fatal to the defendants. The principle underlying the view to which we now advert is established as the law in this State, and is supported by the apparent weight of authority elsewhere. It is stated by' Judge Buchanan in Schaubuch v. Dillemuth, 108 Va. at p. 89, 60 S. E. 746, 15 Ann. Cas. 825, as follows: “If the fence was placed where it is by the defendant, upon the belief that the boundary west of the fence, in the possession of his grantee and those who claim under him, contained fifty acres, when in fact it only contained thirty-three acres, it was a mistake, and the defendant’s possession of the seventeen acres on the east side of the fence would not be adverse, unless he intended to claim as his own the land east of the fence, even though the fence was not upon the true line. “Upon this question the cases are not in harmony, but the great weight of authority is in favor of the — 761 — view, that where a person occupies and possesses the land of another, through a misapprehension or mistake as to the boundaries of his land, with no intention to claim as his own that which does not belong to him, but only intends to claim to the true line, wherever it may be, he does not hold adversely. See 1 Cyc. 1036-1038 and cases cited in note 96; Warville on Ejectment, secs. 440, 441; Newell on Ejectment. “The reason why such an occupancy and possession could not be adverse with us is because in this State intention to hold adversely is an indispensable element of adversary possession (see Clarke v. McClure, 10 Gratt. (51 Va.) 305, 310; Early v. Garland, supra, [13 Gratt. (54 Va.) 1]; Haney v. Breeden, 100 Va. 781, 784, 42 S. E. 916), and it is wanting where the occupant does not intend to claim the fence as his line unless it be the true line.” In that case, which was an action of ejectment, the plaintiff, Dillemuth, claimed title under a deed which the defendant had made to his father, Henry Schaubuch, and under which the plaintiff showed a good paper title to the land in controversy. It appeared from the evidence that the defendant, Schaubuch, had been in possession of the disputed land for more than the statutory period, but it did not appear (as it does in the instant case) when or how his possession commenced. Schaubuch’s deed to his father, under which Dillemuth claimed, conveyed fifty acres of a larger tract owned by Schaubuch, but the dividing fence, for some reason not explained in the evidence, was not placed on the true line and only included in the father’s boundary thirty-three acres. After discussing the abstract principles of law applicable to the ease, Judge Buchanan, in sustaining the judgment of the lower court in favor of the plaintiff, on a demurrer — 762 — to the evidence by defendant, said further: “The evidence, considered upon the demurrer to it, manifestly does not sustain the defendant’s claim of adversary possession. It does appear that he had exclusive possession of the land in controversy for more than fifteen years, perhaps for twenty-five or thirty years; but it does not appear that he held it under color of title or claim of right. If he held it as the grantee of his father, he held, not adversely, but in subserviency to the grantee, as there is no evidence that he ever disclaimed that relation, and asserted an adverse right, which was brought to the knowledge of his grantee or those claiming under him. If he was holding the land under the mistaken belief that the fence between the thirty-three acres and the land in controversy was the line, the evidence not only fails to show that he intended to claim and hold all the land east of the fence, whether or not it was upon the true line between his land and that he had conveyed to his father, but it tends strongly to show that he did not occupy the land with the intention of claiming or holding to the fence unless ‘ that was upon the true line.” See also 2 Min. Real Prop., sec. 1036, p. 1114; Graves’ Notes on Real Prop., sec. 139, and note; Davis v. Owen, 107 Va. 283, 289, 58 S. E. 581, 13 L. R. A. (N. S.) 728; Clinchfield, Coal Co. v. Viers, 111 Va. 261, 68 S. E. 976; Note to Schaubuch v. Dillemuth, 15 Ann. Cases 827, and subsequent note in Ann. Cases 1912-A, p. 450, classing the Virginia decisions with the majority rule. For the reasons stated, we are of opinion that the judgments complained of must be reversed, the verdicts of the jury set aside, and the causes remanded for new trials to be had not in conflict with the views herein expressed. Reversed.