English v. Openshaw

BARTCH, J., after a statement of the case as above, delivered the opinion of the court.- [246] At the trial the defendant offered in evidence the warranty deed dated September 26, 1882, from Andrew English to George W. English, Jesse R. English and the defendant, conveying to the grantees the property in controversy herein. To this offer the plaintiff objected upon the ground that from September, 1881, until his death, in 1892, the grantor was in possession of the premises, and thereafter until the present time his heirs were in possession, and that, such being the case, even if he made the deed, his title could not be disturbed by it. This objection was overruled, and the action of the court has been assigned as error. The appellant insists that the sourt erred in admitting. the deed in evidence without first requiring a 1 showing of possession by the defendant under it, especially as actual and adverse possession had been shown in plaintiff’s ancestors and herself for a period beyond the time precribed in the statute of limitations. Under the facts and circumstances disclosed by the record this contention is not well taken. The first point made refers- simply to the order of proof, a matter which was within the sound discretion of the court; and no abuse of discretion has been shown. That a warranty deed regular upon its face cannot be admitted in evidence without first showing possession under it, is not the law. Possession may be shown after-wards, as was done in this case. Referring to the second point made — the adverse possession of plaintiff and ancestors and the bar of the statutes — the proof seems wholly inadequate to render the bar complete. The circumstances under which the property was purchased, the purpose for which and the manner in which the purchase 2 was made, the homeless and financial condition of plaintiff’s parents in their old days, the understanding between the contributors of the purchase money that the parents should enjoy the property as a home as long as they lived, the fact that they did so enjoy it, the evidence tending to show that the fath [247] er acted as agent for the contributors and received the deed to the property as such, the conveyance by him to the contributors a year after he had taken possession of the property the recognition in writing by the plaintiff of the defendant’s interest in the property after the death of the grantor who executed the deed in controversy, the deed itself — all these things strongly tend to show that the possesion of the plaintiff and her ancestors, as to- the interest of the defendant in the property, was permissive, and not hostile. The proof fails to show that there was ever any overt act, or anything said or done by those in actual possession, that could be construed as a notice to the defendant that they were claiming or holding- possession adversely to him. The mere fact that the grantor and his family remained "in possession after he executed the deed to the defendant and others does not render their possession adverse to the grantees. By his deed the grantor passed the legal title to a one-third interest in the property to the defendant as grantee, and his covenants in the deed raised the presumption that his occupation of the property 3 thereafter was under and in. subordination to ithe legal title. To overthrow this presumption, the party claiming adversely had the burden to establish the fact, by competent evidence, that an adverse possession continued for the statutory period of limitation. This is so under our statute. Section 2861, Rev. St. The same principle has been announced by this court. Funk v. Anderson, 22 Utah 238, 61 Pac. 1006; Center Creek Irr. Co. v. Lindsay, 21 Utah 192, 60 Pac. 559 ; Smith v. North Canyon Water Co., 16 Utah 194, 52 Pac. 283. And such is the law in other jurisdictions. Schwallback v. C., M. & St. P. R. Co., 69 Wis. 292, 34 N. W. 128, 2 Am. St. Rep. 740; McNeil v. Jordan, 28 Kan. 7; Dawson v. Bank, 15 Mich. 489; Jeffery v. Hursh, 45 Mich. 59, 7 N. W. 221; Catlin v. Decker, 38 Conn. 262; Whiting v. Edmunds, 94 N. Y. 309. The proof in this case is wholly inadequate to establish title by adverse possession. We are of the opinion that the deed was [248] properly admitted in evidence; that it was not a mortgage, but-an absolute conveyance; and that the plea of adverse possession and of the bar by virtue of the statute of limitations cannot avail the appellant. It is also contended by the appellant that the court erred in admitting in evidence the portion of the letter 4 written by the plaintiff to the defendant in June, 1894, but we perceive nothing to warrant this contention. The writing shows a recognition of the interest of the defendant in the property by the person who is now claiming to have held adverse possession at the very time she wrote the letter. The foundation for its admission was properly laid. It was therefore, rightfully admitted as tending to show that she held possession in subordination of the legal title.' We entertained no doubt that the respondentis entitled to an undivided one-third interest in the property in controversy, and do not deem it important to discuss the other questions presented, although we have examined and considered all of them. The judgment is affirmed with costs. BASKIN, C. J., and McCARTY, J., concur.