Brewster v. Herron , 1952 Okla. LEXIS 461 ( 1952 )

GIBSON, Justice.

The parties will be referred to as they appeared in the trial court. Defendant in error was plaintiff, and commenced this action to quiet title to Lots 1 to 5, inclusive, in Block 8 of Lone Pine Addition to Idabel, Oklahoma, by filing his petition in the District Court of' McCurtain County on June 11, 1947.

Conflicting claims of title arise by virtue of the proceedings in an action to foreclose a real estate mortgage given by a'former owner, Ida Jones. Plaintiff claims by mesne conveyances of the heirs of said mortgagor and adverse possession, and defendants claim by virtue of mesne conveyances of one mortgagee and the heirs of a second mortgagee. Primarily the case must turn on the application of the fifteen year statute of limitations, Tit. 12 O.S.1951, § 93.

The events giving rise to this litigation, stated chronologically, are as follows:

All parties agree that title to the property was held by one Ida Jones prior to and after September 3, 1924. On that date she executed a mortgage on said real estate to secure a note for $500 in favor of Easton Billy, guardian of Dora Wade and Alexander Wade, minors. Upon default a foreclosure action was commenced.

May 6, 1927, a decree of foreclosure was rendered, and execution issued. June 1, 1927,- Ida Jones died, and the action was never revived as against her heirs or representatives.

Octa Jones, a daughter of Ida, continued in possession of the property and on June 4, 1927, all-other children and heirs of Ida Jones executed and delivered deeds to Octa Jones. These heirs were not parties to the foreclosure proceedings.

June 27,- 1927, the property was sold by the sheriff of McCurtain County to Dora Wade and Alexander Wade, the judgment creditors.

December. 31, 1927, Dora Wade died, and there has been no revivor as to her li.e,irs or representatives.

Oicta Jones continued in open and notorious possession of the property and paid taxes on the same throughout the years of her ownership.

Nothing further occurred in the foreclosure proceedings until January 3, 1940, when, following the filing of a motion, the court entered its order confirming the sheriff’s sale above mentioned and ordered the sheriff to execute a deed to Alexander Wade and Ida Wade (now McGee), the court finding that these grantees were the heirs at law of Dora Wade.

June 14, 194S, Octa Jones (now Bateman) executed a warranty deed conveying the property to Ira Rone, who on June 19, 1946, conveyed to plaintiff.

January 27, 1947, Alexander Wade, Ida Wade (now Wesley) and Acy Wade, surviving widow of Clayton, Wade, conveyed by warranty deed to defendant, Brewster.

July 3, 1947, the sheriff of McCurtain County executed his sheriff’s deed unto Dora Wade and Alexander Wade, their heirs and assigns. As noted above, Dora Wade was then deceased.

On September 26, 1950, judgment, in the instant case, was rendered in favor of plaintiff and against the defendants quieting the title in plaintiff. The defendants, named as plaintiffs in error, appeal.

• In the judgment the trial- court made extended findings,- determining the heirs of John Taylor, the original allottee of the land from which Lone Pine Addition was later platted, and the heirs of Ida Jones, and reciting the history of the foreclosure action. The court found that the statute of limitations had commenced to run- from the date of the sheriff’s sale in the foreclosure proceedings, and defendants were barred from asserting title to the property.

The trial court found that Octa Jones became the owner of the property by purchase from the heirs of Ida Jones and by inheritance and that she had paid taxes thereon from the time of her ownership. The -court further found:

“The court further finds that the defendants, and each of them above named have never been in the possession of, have never collected or received any rents therefrom and have in no way exercised any control over the premises herein described.

“The court further finds that the plaintiff and his privies or grantors have been in adverse, actual notorious, unbroken continuous and exclusive possession of the above described property under exclusive ownership for the past 31 years; that the grantees of the plaintiff have built and placed valuable and lasting improvements on the said described property.”

All of the above findings were sustained by the evidence, and this action was not commenced until 20 years after the recorded deed to Octa Jones.

Adverse possession of real estate for the period of time prescribed by the statute ripens into title by prescription. Adverse possession may be either under claim of right or color of title. When an occupant of land is in possession thereof under a deed which purports to place the title in him, he is holding adversely under color of title. City Nat. Bank of Duncan v. Soderberg, 171 Okl. 369, 43 P.2d 495.

And we have held that under and by virtue of Tit. 42 O.S.1951 § 23, the grantee of a mortgagor may successfully institute and maintain an action-to quiet title against a' mortgagee not in possession of the mortgaged property, when the mortgage lien has been extinguished by the lapse of time sufficient to bar an action upon the mortgage debt. Moore v. Kennedy, 196 Okl. 455, 165 P.2d 832.

It is said that continued possession by the landowner after a judicial sale is not adverse to the purchaser and ihat he is merely a tenant at sufferance of the purchaser and that therefore the statute would not begin to run until conclusion of the foreclosure proceedings. Nevertheless an adverse possession may be established by open and hostile acts of the owner asserting a title of his own.

We find the rule stated in 2 C.J.S., Adverse Possession, § 105, p. 659 :

“The owner’s continued possession after sale of the property at execution, judicial, or like sale is that of a tenant at sufferance of the purchaser, and is not hostile to the purchaser without a clear repudiation of his title and assertion of hostile claim, and in the absence of all testimony manifesting the actual character of his holding, his possession is regarded as consistent with the title of the purchaser.

■ “There is nothing in the relation of the parties to preclude the original owner from converting his amicable into a hostile possession, and the possession of the judgment debtor may be hostile to the purchaser under a judgment so as to ripen into adversary title where it is shown that the possessor has claimed title in himself openly and notoriously for the statutory period.

“The possession of the heirs of a purchaser’s grantees, after sale on foreclosure of a vendor’s lien, to which they or the grantee are not parties, has been held sufficient to start the running ,of limitations in their favor against the purchaser at such sale.”

There was evidence to establish an adverse claim of title. The property was fenced and livestock of Octa Jones grazed thereon. Later a new fence was built. She filed of record deeds from the other heirs of Ida Jones which, to say the least, gave her a color of title.' Octa Jones and her successors of title paid the taxes each and every year from the date of her deeds. Defendants did not attempt to exercise any control over the property until after this suit was filed. By that time lasting improvements had been placed upon the property and it had become valuable. Defendants did not cause the sheriff’s deed to issue until after this suit was commenced, 20 years following the sheriff’s sale.

It is argued that the statute of limitations did not begin to run until defendants’ cause of action accrued and that defendants had no cause of action for possession of the lands until the sheriff’s sale, was confirmed and his deed, issued. But the delays of 13 years in moving for confirmation and seven years in causing the issuance of the sheriff’s deed were defendants’ delays. And all such delays were in face of the actual notice of fencing and grazing of the land and constructive notice of the recordation of the deeds to Octa Jones and .her payment of taxes on the land over which she was asserting an adverse ownership. The finding of the trial court that plaintiff and his privies or grantors had been in adverse, actual, notorious, unbroken, continuous and exclusive possession of the property for a period in excess of fifteen years is sustained by the evidence.

Affirmed.

HALLEY, V. C. J., and CORN, DAVI-SON, JOHNSON and O’NEAL, JJ., concur. WELCH, J., dissents.