Robinson v. Lake

Wright, J. This action was commenced September 23, 1859. The argument of appellant in support of his demurrer may be stated thus: A plea of the statute of limitations, and one of adverse possession, are perfect and distinct modes of defense, or of resisting a recovery of land. The first is good in an action of right in favor of a trespasser without color of right, who occupies adversely for the time limited, running from the time of plaintiff’s title. The second can only avail when defendant holds during the whole time fixed by the statute of limitations; that in 1848 the statute of limitations was twenty years; in 1851 it was reduced to ten years; that defendant must show adverse possession for twenty years prior to the taking effect of the Code, or ten years after that time; and that under these pleas defendant gets title by adverse possession, because plaintiff did not sue in five years from [424] July 1, 1851, thus making such possession a bar in less than eight years. In our State, title to lands is derived directly from the federal government. He who takes title thus draws the actual legal possession to it. Being thus in possession by force of his title, he so remains until disseized or ousted by some one who enters .with a claim of adverse possession. "When this ouster takes place, the limitation of the statute begins to run. If this adverse possession is legally sufficient, then it constitutes a bar to the assertion of the legal title. To be thus legally sufficient, it must be “actual, continued, visible, notorious, distinct and hostile.” Hawk v. Sensemen, 6 S. & R., 21. Having such possession with color or claim of title, continued and kept up during the requisite period, entitles the defendant to the protection of the statute. 2 Smith’s Leading Cases, 532-60-61. In this case defendant alleges an entry under color of title and adverse possession, of such a nature as to constitute the legal bar. And as he shows that it continued for the time limited by the statute, it must be treated as a positive bar to the assertion of plaintiff’s title. The right of action accrued to plaintiff, or those under whom he claims at the time the entry and ouster, and not from the date of his deed or when he obtained title. As the right of action then accrued, plaintiff would be barred unless he commenced his action within the time limited by the statute. And hence, as this action was commenced in 1859, and the adverse possession commenced in 1848, being of the character stated in the pleas, it was brought too late. Wright v. Keithler, 7 Iowa, 92; Montgomery v. Chadwick, Id., 114; Kilbourne v. Lockman, 8 Id., 380; Jones v. Hockman, 12 Id., 101. Affirmed.