Henderson v. Mann

Mr. Chief Justice Smyth delivered the opinion of the Court: While the evidence does not disclose affirmatively that the appellant continued to live in ¡South AArashington during all the years since she left the property, there is nothing to show that she did not, and therefore we must assume that she did; for where existence of a condition is shown it will be. presumed to continue until the.reverse is disclosed. (Oller v. Bonebrake, 65 Pa. 338.) Jiving, then, in the same city in which the property was located for more than a third of a century, she had (¡very opportunity to know what her cotenants were doing; and, being mentally alert, as the record discloses, she must have appreciated tire significance of their conduct. If she was not aware of all their acts, she necessarily knew enough to advise her of the nature of their claim, and her failure for upwards of thirty-eight years to object or take any steps to assert her right was in effect an acquiescence on her part in the justness of the claim. Even if she was not cognizant of their acts, she cannot avoid their effect by pleading ignorance; since she had the opportunity of knowing, and if she did not inform herself the fault was hers. Means of knowledge is the same thing in effect as knowledge itself. As was said by the ¡Supreme Court of the United States in Broderick's Will (Kieley v. McGlynn) 21 Wall. 519, 22 L. ed. 605: “Parties cannot * * * by their seclusion from the means of information claim exemption from the laws that control human affairs, and set up a right to open all the transactions of the past. The world must move on, and those who claim an interest in persons or things must be charged with knowledge of their status and condition, and of the vicissitudes to which they are subject.” It is urged that since Barbara Johnson was the widow of John Johnson,, the father of the appellant, her possession was [179] that of a widow, or at most of a tenant in common; and that, since there was nothing inconsistent between such possession and the right of the appellant, it was not notice to the latter of an adverse assertion of title; but the record does not sustain the contention. Barbara Johnson was not only in possession, but she excluded by affirmative act the appellant from possession, and through herself and her successors- in title kept her out of it for at least thirty-eight years. This clearly differentiates the case from cases cited by the appellant, as the following decisions establish. “One heir may disseise his coheirs and hold adverse possession against them, as well as a stranger. And, notwithstanding an entry as heir, the party may afterwards, by disseisin of his coheirs, acquire an exclusive possession upon which the statute will run. An ouster or disseisin is not, indeed, to be presumed from the mere fact of sole possession; but it may Be proved by such possession, accompanied with notorious claims of an exclusive right.” (Ricard v. Williams, 7 Wheat. 59—121, 5 L. ed. 398-413; Jackson ex dem. Bradstreet v. Huntington, 5 Pet. 402-440, 8 L. ed. 170—184.) “Twenty years’ possession by one, of two tenants in common, accompanied with exclusive appropriation of the rents and profits, acquiesced in by the cotenant, has been held to afford the presumption of a conveyance from the party out of possession. * * ” (Zeller v. Ekerl, 4 How. 289-295, 11 L. ed. 979-982.) “If the cotenant is in possession, deals with the property as absolute owner, knowingly encumbers the same by mortgage or deed of trust, and by his acts conveys to the public the impression that he is holding adversely to- his co-owners, he may, under such circumstances, acquire a good title by adverse possession.” (Hart v. Eldred, 264 Mo. 148-150, 174 S. W. 380; see also Allen v. Morris, 244 Mo. 357, 148 S. W. 905, Ann. Cas. 1913D, 1310; Hall v. Law, 102 U. S. 461, 26 L. ed. 217; Clymer v. Dawkins, 3 How. 674-689, 11 L. ed. 778—786.) Tn this connection appellant also urges that payment of taxes and appropriation of rents did not necessarily prove adverse possession, and cites many authorities in support of the contention. That is undoubtedly true, but there was here much more; there was a series of acts upon the part of the eotpnants [180] inconsistent with tlie idea of any intent on their part to recog: nize appellant’s interest; they amounted to a positive denial of such interest. And when their cumulative effect is considered it inevitably forces the conclusion that the possession of the cotenants and their successors in title from 1876 down to the date of the suit was open, exclusive, and adverse under a claim of ownership. This established title in them by prescription. (Beatty v. Mason, 30 Md. 409.) The judgment is affirmed, without costs. Affirmed.