Viking Refrigerator & Manufacturing Co. v. Crawford

The opinion of the court was delivered by Porter, J.: The appellee brought suit to quiet title to lots 40 and 41 in block 70, Wyandotte City, now Kansas City, claiming to be the owner by adversé possession for more than fifteen years. The court rendered judg [204] ment in favor of the appellee, which the appellant seeks to reverse. The Wyandotte Town Company held the legal title, and, on the 19th day of January, 1861, conveyed the same to David Crawford, from whom the appellant claims by a direct line of conveyances. Sometime in 1881 or 1882 W. H. Ryus took possession of the lots, in connectipn with six others in the same block to which he held title, inclosed them all with a fence and used them for a time as a part of a brickmaking plant, and afterward as a part of a planing mill which he operated on the property. Several years afterward he transferred the planing-mill property to E. S. W. Drought, and at the same time turned over the possession of the lots in controversy, stating to Drought that •his title to them was by possession and the statute of limitations. Afterward Drought conveyed to Frederick W. Soper and delivered to him the possession of these lots, with the others, making the same statement to Soper that his grantor had made to him with respect to the nature of the title. Neither conveyance described or mentioned the lots in controversy. Drought was a witness at the trial and testified that the lots were all inclosed together, and that after he took possession he used these lots just as he did the rest of the property, and occupied them until he transferred to Soper; that Soper held the possession in the same way; that for some reason Soper never paid him for the property and he took it back, including the lots in controversy. Soper was in possession of the property about two years. During his possession he conveyed the property to Abby J. Smith, by a general warranty deed dated January 5, 1900, which described lots 40 and 41. Soper, however, continued in possession until May 1, 1900, when he turned the property back to Drought and executed to Drought a warranty deed, which also included lots 40 and 41. At the same time [205] Abby J. Smith and her husband quitclaimed the property to Drought, and- their deed described these two lots. Later in the same year Drought conveyed lots 40 and 41 to the refrigerator company, which has ever since remained in possession. One contention which the appellant makes is that the possession of the appellee and its grantors was not continuous. It is insisted that the continuity was broken by the conveyance by Soper and wife to Abby J. Smith. Drought’s testimony is that Soper continued in possession until he reconveyed to Drought. The Smiths never had the actual possession, but the appellee claims, and the court doubtless held, that the possession of Soper, the grantor of the Smiths, was their possession. The appellee relies upon McNeil v. Jordan, 28 Kan. 7, and Sellers v. Crossan, 52 Kan. 570. In the latter case the first paragraph of the syllabus reads: “Where an owner executes and places upon record a warranty deed purporting to convey the complete title of land occupied by himself and family, his subsequent possession will generally be considered as in subserviency to the record title.” There can be no doubt that the expression there used, “the record title,” refers to the title conveyed by the grantor. The rule, as stated in 1 Cyc. 1033, is that “the possession of one who- recognizes or admits title in another, either by declaration or conduct, is not adverse to the title of such other.” Soper’s possession was not adverse to the title of Abby J. Smith, but it was adverse to the title of the appellant. The doctrine of Sellers v. Crossan, supra, is amply sustained by the authorities. (See 1 Cyc. 1039, 1040, and cases cited.) No authorities to the contrary are cited by the appellant, nor have we been able to find any cases which sustain-his contention. The appellant contends that the possession of Ryus can not be tacked to the possession of Drought, and [206] that the possession of Soper can not be tacked to Drought's second possession, for the reason that neither was transferred by deed, note or writing signed by the parties at the time of turning over such possession. When Drought acquired the planing-mill property and took possession of these lots they were not included in his deed from Ryus, nor was there any note or writing given by Ryus turning over their possession; and the same is true with respect to the possession which Drought turned over to Soper. The claim is that possession constitutes an estate or interest in lands which under section 5 of the statute of frauds (Gen. Stat. 1868, ch. 43, § 5, Gen Stat. 1909, § 3837) can not be assigned or granted except by deed or note in writing, signed by the parties granting the same. This contention can not be sustained. Title may be acquired by adverse possession for fifteen years without color of title, if there is a claim of right or of ownership. (Anderson v. Burnham, 52 Kan. 454.) In order that the several possessions can be regarded as continuous and referred to the original entry, there must be privity of estate or title. This privity of estate may be shown by deed or by parol. The rule is thus stated in 1 A. & E. Encycl. of L. 844: “The privity required to constitute continuous adverse possession may be effected by any conveyance, agreement, or understanding which has for its object a transfer of the rights of the original entry.”' Among the cases cited is McNeely v. Langan, 22 Ohio St. 32, holding that it is immaterial, if successive transfers of possession were in fact made, whether such transfers were effected by will, by deed or by mere agreement, either written or verbal. Other cases cited in the notes in 1 A. & E. Encycl. of L. 845, which support the rule that paper evidence of possession is unnecessary are Vance v. Wood, 22 Ore. 77; Menkens v. [207] Blumenthal, 27 Mo. 198, 203; Shuffleton v. Nelson, 2 Sawy. (U. S. C. C.) 540. In the latter case it was said: “Where the possession is actual it may commence in parol without deed or any writing, and I am of the opinion, both upon reason' and authority, that it may be transferred or pass from one occupant to another by a parol bargain and sale, accompanied by delivery. All the law requires is continuity of possession, where it is actual.” (p. 545.) The court found that the appellee and its immediate grantors had been in the adverse possession of the property for more than fifteen years. The findings are sustained by the evidence, and the judgment is affirmed.