Pitman v. Hill

Maeshall, J. It is conceded that if the trial court was correct in drawing the inferences that are embodied in the findings of fact, the judgment must be affirmed. The sole question for consideration, therefore, is, Are such findings contrary to the clear preponderance of the evidence? It [322] hardly needs more than the statement of the evidence found in the foregoing to solve that proposition, when we apply thereto the rules of law governing the subject. The assignment of the certificate of entry, in terms conveying the same and the land therein described to respondent’s predecessor, was a sufficient written instrument upon which to found adverse possession under secs. 4211, 4212, Stats.’ 1898. Grant that the purpose of the parties was to make a mortgage and not a conveyance of the title, and grant, also, that the mortgage indebtedness has been paid; still there is evidence from which the court was warranted in coming to the conclusion that respondent’s predecessor held adverse possession under the instrument for the full statutory period necessary to give him full title to the property. A mere mortgagee of land has no right to the possession thereof. In this case respondent’s father, under the written instrument mentioned, — let it be a mortgage or a full conveyance, it makes no difference which we call it, — took possession of the property and treated it as his own for more than twenty years, and his conduct during the whole time was consistent only with the idea that his possession was adverse. Ten years would have been sufficient. Such conduct by a mortgagee is sufficient to give him title by adverse possession. Knowlton v. Walker, 13 Wis. 264; Waldo v. Rice, 14 Wis. 286. The acts of ownership were open, continuous, hostile, and of a nature to satisfy all the essentials of adverse possession under or independently of the statute. Lampman v. Van Alstyne, 94 Wis. 417, 69 N. W. 171. They consisted of using the premises for a woodlot, the adverse possessor taking wood therefrom for his ordinary use annually for the full statutory period. That satisfies to the letter subd. 3, sec. 4212, Stats. 1898. To that we have added the significant circumstance of the payment of the taxes, which is inconsistent with any other theory than that the payor claimed the property as his own. Whether his claim was in good faith or bad faith of course makes no difference. [323] Lampman v. Van Alstyne, supra. The continued use of the property as indicated, by force of the statutes, secs. 4210, 4211, displaced the presumption that it was subordinate to the rights of a superior owner, and substituted in its place the presumption that the use was characterized by all the elements of adverse possession necessary to cut off the title of a once superior owner, if there were such, and vest a complete title in fee in the hostile claimant. Secs. 4210, 4212, Stats. 1898; Carmody v. Mulrooney, 87 Wis. 552, 58 N. W. 1109; Wilkins v. Nicolai, 99 Wis. 178, 74 N. W. 103; Wollman v. Ruehle, 100 Wis. 31, 35, 75 N. W. 425; Bishop v. Bleyer, 105 Wis. 330, 81 N. W. 413; Illinois S. Co. v. Budzisz, 106 Wis. 507, 82 N. W. 534; Meyer v. Hope, 101 Wis. 123, 77 N. W. 720. Now, where is the evidence to rebut that state of the case ? Our attention is called to none except the circumstance that the note claimed to represent the indebtedness which was the foundation of the transaction of turning the certificate of entry over to respondent was found in the possession of the maker, indicating that it was a paid obligation. There are circumstances about the paper itself to impair its weight as evidence that it is a paid obligation. It was attached to a paper which naturally belonged from the beginning in the possession of the maker of the note. That, as suggested by respondent’s counsel, indicates that the note may never have been used at all; that is, that it never became an obligation because never delivered to the payee. Again, if the note was paid, and was the foundation of the transaction whereby respondent’s predecessor came into possession of the certificate of entry and the assignment of it, possession thereof by the maker would rather.indicate that the action of such predecessor was hostile. If he paid the note yet respondent’s predecessor retained the certificate of entry and the conveyance thereof, and treated the land .as his own, even if the paper were in form as well as in fact a mortgage, such conduct [324] would seem to corroborate the idea of adverse possession rather than rebut it. On the whole we can see no justification for holding that the trial court found the facts against the clear preponderance of the evidence. By the Court. — The judgment is affirmed.