Jones v. Hockman

BalpwiN, J. Action of right. It is conceded that the evidence introduced upon the trial in the District Court fully shows the fee simple title to the land in controversy to be in the plaintiff. The defendant rests his claim to the possession of the property upon the fact that he has been in the peaceable and uninterrupted possession of the same for ten years prior to the commencement of this action, or in other words, that the right of plaintiff’s recovery has been barred by the statute of limitations. The defendant does [107] not claim that he has held the property by any title adverse to that of plaintiff, and the question presented is, whether the mere possession without color or claim of title, is such a possession as will enable the defendant to avail himself of the statute of limitations. Was the possession relied upon by the defendant inconsistent with the right of plaintiff? In order to bar the plaintiffs right of recovery, there must have been some claim of title adverse to his; something against which the statute could operate. The legal title being conceded to be in plaintiff, the law adjudges the right of possession to follow such title. “ The law deems every person to be in legal seisin and perfect and complete title; and this seisin and possession, is co-extensive with his right, and continues until he is ousted thereof by an actual possession in an other, under a claim of right. The fact of possession per se, is only an introductory fact to a link in the claim of title to possession, and will not, simply of itself, however long continued, bar the right of entry of him who was seized, and of course, creates no positive title in any case.” Angel on Lim., § 384. If one enter on the land of another without any title, or claim or color of title, the law adjudges the possession to be in subservience to the legal owner, and no length of possession will render the holding adverse to the title of the owner. Jackson v. Thomas, 16 John. 293. The principle upon which the statute of limitations is predicated, is not that the party in whose favor it is invoked, has set up an adverse claim for the period specified in the statute, but that such adverse claim is accompanied by such invasion of the rights of the opposite party as to give him cause of action, which, he having failed to prosecute within the time limited by law, he is presumed to have extinguished or surrendered. 11 Grill & J., 371. In the case of Wright v. Keithler, 7 Iowa, 92, STOCKTON J., in delivering the opinion of the court, said: “The defendant offered to prove, ‘ that himself and those under [108] whom he claimed, had had actual and continued possession of the land described in the petition, for more than ten years prior to the commencement of this suit.’ This testimony was objected to by the plaintiff, and excluded by the court. Would the testimony, if admitted, have constituted a good defense to the action? In the terms in which it is stated, we think it could not. It is not stated that the testimony offered would have shown an adverse possession, and it must have been an adverse actual possession in defendant, and those under whom he claimed, in order to be available as a valid defense to the action.” We think this question thus determined must be decisive of the one under consideration. There must be an adverse actual possession in order to avail the defendant under his plea. To constitute an adverse possession, there must be some claim or color of title under which the defendant has in good faith supposed he had a right to the property, and under which he continued in possession. It is claimed by the counsel for appellee, that no exceptions were taken by the plaintiff to the giving and refusing of the instructions of the court, at the time, and that appellant, therefore, cannot insist upon such ruling as erroneous. It appears from the record before us, that exceptions were taken at the the time, by the plaintiff, to the refusal of the court to give the instructions asked by him. The time when the bill of exceptions was filed by the clerk is immaterial, if it appears that such bill of exceptions was- ordered by the court to be made part of the record. Even if the law required the exceptions to be filed at the time taken, the defendant having had an opportunity to inspect the record, and to purge it of any papers improperly here, and having failed so to do, it is too late, after submission ,to make this objection. The instruction which the court refused to give, as asked for by plaintiff, and marked “ 3|-,” presented fully the ques [109] tion above discussed. Tbe court, by denying this instruction, refused to say to tbe jury that “tbe possession cannot be adverse unless tbe occupant claims title to tbe soil.” This instruction should have been given. Judgment reversed.