Bird v. Whetstone , 71 Kan. 430 ( 1905 )

The opinion of the court was delivered by

Johnston, C. J.:

The evidence in the case was not preserved, and the rights of the parties must, therefore, be determined by the findings made by the trial court. Whetstone bases his claim to the land on adverse possession, held for a longer time than is necessary to give title by limitation. He enclosed and improved the land in 1880, and since that time has been in the exclusive and continuous possession of it. It is contended that the possession was not such as would ripen into a title, and that when he conveyed the land to Hannah Dryden his continued possession was subordinate to her rights and indicated that he was holding possession for a temporary purpose only, as her tenant at sufferance. It has been repeatedly held that an owner who conveys land and continues in possession of it after his conveyance is recorded is deemed to be holding under his grantee, and in subservience to the record title. (McNeil v. Jordan, 28 Kan. 7; Sellers v. Crossan, 52 id. 570, 35 Pac. 205; Hockman v. Thuma, 68 id. 519, 75 Pac. 486.) In such a case the statute of limitations would not begin to run until the presumption of holding in subserviency to the title of the grantee was in some way overcome.

Under the facts found, however, it cannot be said that Whetstone remained in possession of the. land after his deed was made and recorded. The land was not fenced, cultivated or otherwise improved until 1880. When Whetstone conveyed it to his niece it was unoccupied, and his possession was only constructive. His conveyance of the vacant land transferred both title and possession to his grantee. In such a case the possession is deemed to follow the title. (Gildehaus v. Whiting, 39 Kan. 706, 18 Pac. 916; 15 Cyc. 36.) Such possession as Whetstone had was therefore interrupted from 1874 until 1880, during which time it must be regarded as having been in his grantee. When he enclosed the land, in 1880, and cultivated and improved it, his possession, then taken, was wholly independent of the constructive possession that he held at the time of the conveyance to his niece.

The supreme court of Nebraska had under consideration a case involving the transfer of title to vacant lands which the grantor subsequently took actual possession of, and on which he made permanent improvements. The court said:

“The holder of the legal title to vacant lands is deemed to be in possession thereof. (Troxell v. Johnson, 52 Neb. 46, 71 N. W. 968.) Hence, when Horbaeh executed and delivered a deed to Boyd which conveyed the legal title, possession went with it. The land being vacant, the same act that devested Horbach’s title and created a title in Boyd terminated Horbach’s possession, and put Boyd in possession. Such possession, as we understand the defendant’s claim, continued for four years. Then, in 1861, as defendant offered to prove, Horbaeh enclosed the land and other tracts with a substantial fence; he and his lessees cultivated it; he publicly and notoriously claimed to own it, and was named as owner on maps and plats in general circulation ; the land was assessed as his; he conveyed it, and he and his grantees and lessees put' houses upon it. This is not a continuance of the possession existing prior to the conveyance. It is a subsequent entry, creating a new and independent possession, and giving rise to a new and original title.” (Horbach v. Boyd, 64 Neb. 129, 132, 89 N. W. 644.)

Whetstone was out of possession of the land for about six years, and the possession taken in 1880 and exclusively held for about twenty years before this action was begun is to be regarded as a distinct and independent possession, and as the foundation of a new and original title. As he did not continue in possession after conveyance the rule invoked as °to the kind of disclaimer necessary to change a permissive possession into an adverse one has no application. His occupancy and improvements were an open assertion of a claim of right in the land, and were of such a character as to give notice to Hannah Dryden and others interested in the land of an intention to appropriate it. He entered upon the land with the intention “to keep it” for himself, and the fact that he then had no title or color of title did not prevent him from acquiring the land by adverse possession.

“Possession of land by an adverse occupant for more than fifteen years, which is actual, notorious, continuous, and exclusive, will give title thereto, although such possession is entirely destitute of color of title.” (Pratt v. Ard, 63 Kan. 182, 65 Pac. 255.)

The findings of fact sufficiently support the judgment which'was rendered, and it is therefore affirmed.

All the Justices concurring.