Vandall v. Martin ( 1889 )

Collins, J.

This is an action to determine adverse claims. The plaintiff alleged title to the land in question in fee-simple, and that he had occupied and possessed it as a homestead for more than 25 years. Defendants denied plaintiff’s alleged title, but admitted his possession for the period of 16 years; thus conceding the fact and character of the possession, but not for the period of time claimed by •the plaintiff. Much of the testimony received by the trial court was objected to by appellant defendants, but we have discovered no prejudicial error, especially in view of the finding of fact upon plaintiff’s claim of adverse possession for more than 20 years prior to the commencement of the action. The testimony clearly justified the court in finding that it was the intention of all parties to include in the deed of date January 25, 1859, executed and delivered by Paul Bibeau, at ■plaintiff’s request, to Bibeau’s daughter, then plaintiff’s wife, all of the land then used and occupied by plaintiff as his farm, but held in secret trust by Bibeau. And this same intention existed when, in the year 1880, the deeds were made which, as was supposed, placed the legal title to the farm in plaintiff. Under an arrangement for an exchange of lands made between plaintiff and Mardi, before purchasing from the general government, the small tract in question was to be deeded by the latter to plaintiff. On plaintiff’s solicitation Mardi deeded it to Bibeau. The testimony was ample, in connection with the facts and circumstances, to warrant the conclusion that this tract was omitted solely by mistake from the Bibeau deed, and that the same mistake followed in the deeds made in 1880. It is evident that all parties supposed until about the year 1884 that the description in the deeds covered the land in controversy. Bibeau, although living •in the neighborhood until his decease in 1865, asserted no claim to it as owner or otherwise, and, after his death, his heirs, the appellants, claimed no rights prior to the making of the final decree in probate court in the matter of his estate, May 27,1887, so far as we can discover. The plaintiff has always paid the taxes. The land was fenced by him more than 25 years prior to the bringing of this action, and has been farmed annually for more than 30 years. In the year 1870 a dwelling-house was built thereon, into which plaintiff and his family moved from an older house upon another part of the farm. Plaintiff has occupied this dwelling-house ever since. From the time of the Bibeau deed in 1859 down to the deed to the daughter in 1880, the possession of Mrs. Yandall, plaintiff living with her and carrying on the farm, was exclusive, open, notorious, adverse, and continuous, under an honest claim of ownership. Since the deed to the daughter and her deed to plaintiff, (all one transaction,) the possession of the plaintiff has been of the same character. Laboring under a belief that the tract in controversy had been included in the description and conveyed by the Bibeau deed, — as it should have been, undoubtedly, — Mrs. Yandall in good faith commenced to assert an exclusive ownership in the year 1859, and thereafter, until 1880, for more than 20 years, maintained a continuous, exclusive, and adverse possession. Title by prescription could certainly be acquired in this way. Smith v. Chapin, 31 Conn. 530; Bean v. Bachelder, 74 Me. 202. With this belief as to ownership in her mind, she transferred actual possession of the entire farm to her husband — who believed the same as to a perfect and complete title —in the year 1880, under a deed in which existed the same defect in description, and this possession he has since retained. The disseisin of Bibeau, resulting from the adverse possession of Mrs. Yandall, was not interrupted by the transfer of possession to her husband. The successive adverse possessions were connected by the privity which exists between two successive holdings when the later takes under the earlier, as by descent, will, grant, or by voluntary transfer of possession. Sherin v. Brackett, 36 Minn. 152, (30 N. W. Rep. 551,) and cases cited. The possession must be connected as well as continuous, so that the possession of the true owner shall not constructively intervene between them; but such continuity and connection may be effected by any conveyance or understanding which has for its object a transfer of the rights of the possessor, or of his possession, and is accompanied by a transfer of his. possession in fact. Smith v. Chapin, supra; McCoy v. Trustees, 5 Serg. & E. 254. The plaintiff herein could tack his possession on to that of his wife.

While the testimony in this case may not have justified the court below in finding, as it did, that plaintiff held adversely as early as March 1, 1856, it was obvious that Bibeau was disseised in 1859, immediately upon the execution and delivery of the defective conveyance. The testimony in support of the finding as to adverse possession for a period of at least 20 years immediately preceding the commencement of the action is abundant. It was competent to show that it was intended by the parties to include the land in question in the Bibeau deed, and that it was omitted by mistake, as tending to establish the claim that Bibeau’s grantee had possession, from its date, in good faith, and with intent to hold adversely. And it was competent to show the same intention to convey, and a like omission in the deeds under which plaintiff took possession, for the purpose of presenting the relation of the possession taken by plaintiff to that relinquished by his wife.

Order affirmed.