Watters v. Connelly

Beck, J. I The mortgage which is the foundation of the action, was executed January 2, 1877, by Daniel 0. Connelly and Patrick Connelly, with their wives, and conveyed — 218 — the south half of section 25, township 89, north, range 29 west, and east half of section 25, towhship 89, north, range 39 west. The defendants, .James Connelly and his wife, in their answer allege that, in June, 1868, Daniel 0. Connelly, the father of James, being indebted to him for services of himself for five years, and for the service of his wife for one year, sold to him and his wife the east half of section 25 above described in payment of this indebtedness. No deed or other writing witnessing the sale was executed, but the defendant James at once took possession of the land, a house having been built thereon by his father which he occupied with his family as his home, and paid taxes on the land from 1868 until the present time. He claims that at the time the mortgage was executed he was the owner of the land of which his possession gave notice to the world. The plaintiffs in reply to the answer of defendants, James and his wife, deny their interest in, and claim to, the land, and aver that it was the property of the father Daniel O. Connelly. They .further allege that the mortgage, which plaintiffs seek to foreclose, was given for money loaned by them, which was applied to the payment of a mortgage executed by Daniel O. and Patrick Connelly to.the .¿Etna Life Insurance Company upon the land in question, and to the satisfaction of several judgments against James, which were liens upon the land. Plaintiffs claim that by reason of these facts and transactions defendants, James and his wife, are estopped to set up any interest or title they may hold in and to the land against plaintiffs mortgage. By the decree rendered in the court below the mortgage was foreclosed as to the south half of section 19, and foreclosure was refused as to the land claimed by defendants J ames Connelly and his wife. Certain defenses were pleaded by the defendants other than J ames and his wife, which need not be here further noticed as no appeal was taken in that branch of the case. We ai’e only - required to determine — 219 — whether the evidence and the law supports the decree of the District Court discharging the land claimed by James Connelly and wife from the lien of the mortgage. II. We think the evidence satisfactorily establishes a sale of the land in question in 1868 to James by his father. James testifies positively to such sale and his evidence is corroborated by the testimony of his wife and brother-in-law, Fitzpatrick. The same witnesses testify that James had served his father for about seven years after he attained his majority, and his wife, after his marriage, had rendered service to the father for one year. The land was given by the father in payment for these services. In 1868 James and his wife went into possession of the land, and afterwards used and occupied it as his own property. They paid the taxes upon the land and plowed about 120 acres and made other improvements thereon. The sale of the land and the possession thereunder by James, we think, is clearly shown. ^osseSoii of Their possession and cultivation of the land was sufficient to put the plaintiffs in this case upon inquiry and impart notice of the interest in, and equitable title to, the land held by James. This conclusion is based upon elementary principles of the law-See 1 Kent’s Com., p. 179, et seq. Wade on Notice, sections 273-279; 2 Leading Oases in Equity (Am. Notes), p. 165. The inquiry thus suggested would ■ have revealed to the plaintiff the equitable title held by James Connelly to the land. 2._:__: notice.01 III. We are required in the next place to determine the extent of the interest of which the possession of James gave notice, or in other words, the quantity of land which he can hold free from the mortgage.. The half section of land in controversy was not wholly inclosed by fences and was not wholly cultivated. About 120 acres were plowed, the remainder was unbroken prairie. The cultivated land was partly upon each quarter section, but probably it did not extend to each forty of the tract. Plaintiffs’ — 220 — counsel insist that if defendant’s possession of the land imparted notice of his equities, they extended no further than to cover the land in actual cultivation. It is a well settled rule applicable to the question of adverse possession of lands, when the protection of the statute of limitations is invoked, that actual possession of a part is legal possession of the whole of a tract covered by the title under which the actual possession of the part is taken, and that possession of the part will impart notice of claim to the whole tract. Langworthy v. Myers et al., 4 Iowa, 18; 2 Washburn, on Real Property, p. 497, Sec. 36; p. 500, Sec. 44, and notes. Anderson v. Darley, 1 Nott. & McC., 369; Eifert v. Reed., Id., 374; Bailey v. Carleton, 12 N. H., 9; Little v. Medquire, 2 Me., 176; Cluggage v. Duncan, 1 Serg. & R., 111. The reasons which support this rule require us to apply it to the case of notice of an equitable title imparted by possession. When the question is one of adverse possession, occupancy of a part of the land will carry the possession to the whole tract for the reason that the possession is presumed to be as broad as the claim of title. No other rule would be just and equitable in this country where it often happens that the whole of a tract is not reduced to actual possession by inclosure and cultivation. Besides, the lands being subdivided by government surveys — the unit of such subdivision being the section (see Martin v. Cole, 38 Iowa, 141), claims of title are usually limited in extent by such surveys. The quantity of the land owned by each, citizen is not uniform. It may be the unit of the government survey, a section of 640 acres, or the one-sixteenth of a section, of 40 acres. But whatever be the quantity, it usually conforms to some government subdivision. Now the notice of his equity imparted by the possession of the land-owner who holds no recorded title, ought to extend to his claim as limited by the government survey. Indeed, we think, in our own State no one would entertain the thought that a citizen, who has commenced the improvement of a farm by breaking a few acres of — 221 — prairie, would limit his claim to the land he actually reduced to cultivation or enclosed with a fence. It would, in such a case, be understood that his claim extended to a government subdivision and the person put on inquiry by his possession would seek of him information as to its extent. It cannot be doubted that a possession sufficient to impart notice of an equity, may be of such a nature as would suffice to constitute adverse possession. Adverse possession of a part, as we have seen, is construed to extend to, and cover the entire tract claimed by the possession. Under these cases possession of part imparts notice of the claim to the whole tract covered by the equity under which the land is held. 3. estoppel : stuutfng.0011 IY. Counsel for plaintiffs insist that defendants are estopped to set up their claim to the land for the reason that the money borrowed upon the faith of the mortgage was appropriated to the payment of another mortgage executed by Daniel O. Conelly upon the land, and to the payment of certain judgments against the defendant James. It is shown that James had no knowledge of the execution of the mortgage just spoken of, and it is not shown that the judgments were rendered for debts which he owed as principal. In all of them, we believe, his father, or Patrick Connelly, or both, were also defendants. It was the purpose in paying the judgments to discharge the liens standing against Daniel O. and Patrick Connelly. It is shown that James had no knowledge at the time that his land was covered by the plaintiff’s mortgage, and there is no evidence that he knew the manner in which the money borrowed by plaintiff was to be appropriated; certainly, it is not shown that the appropriation of the money was made through his procurement or upon his request. Ye think there exists no ground upon which the estoppel will rest, precluding him from resisting the enforcement of the mortgage against his own lands. The foregoing discussion disposes of all questions arising in — 222 — the ease. In our opinion the decree of the District Court is correct and ought to be Affirmed. Day, J. If the plaintiff’s mortgage had been taken only upon the portion of the land claimed by James Connelly, of which there was no visible possession, there would be great doubt whether the possession of a part not included in the mortgage would operate as notice to the plaintiff, for if a party buys, or takes a mortgage upon a forty of land to which his vendor or mortgagor has the legal title, and the property is not visibly in the possession of any one, by improvement or otherwise, there is nothing to put him upon inquiry. But this case is different. Here the plaintiff took a mortgage upon the whole east half of section 25. There was a house on one forty of it, in which it is conceded the defendant was living at the time. The mortgagee was thus put upon inquiry. When a party is placed upon inquiry, he is affected with notice of all the facts which inquiry would have elicited. If the mortgagee in this case had inquired of James Connelly by what right he occupied the forty acres on which he was living, he would have learned that he claimed to own the whole half section. Now the mortgagee is in precisely the same situation that he would have been in if he had made this inquiry and received the information. In fact he is in law presumed to have inquired, and obtained this information. The case is altogether different from one in which a party is visibly in possession of one forty of a section, without legal title, but is rightfully entitled to a conveyance for the whole section, and a person, without actual notice, buys, or takes a mortgage from the holder of the legal title upon a distinct forty of which there is no visible possession. For the reasons above set forth I concur in the conclusions of the foregoing opinion.