Cox v. Cox , 134 Va. 307 ( 1922 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

Prom the evidence in the case it is plain that the possession of the appellant was originally taken and held in subserviency to or in privity with the title of the appellee. This being true, it is well settled that the statute of limitations did not begin to run in favor of the appellant upon his claim of title to the property until the appellee had actual or constructive notice of such claim. Baber v. Baber, 121 Va. 740, 758, 94 S. E. 209; Creekmur v. Creekmur, 75 Va. 430; Reusens v. Lawson, 91 Va. 226, 21 S. E. 347; Thompson v. Camper, 106 Va. 315, 55 S. E. 674; Yellow Poplar Co. v. Thompson, 108 Va. 623, 62 S. E. 358; and Duggins v. Woodson, 117 Va. 299, 84 S. E. 652.

The case, therefore, turns upon the answer to the following question:

1. Did the appellee for any continuous period of fifteen years, have (a) actual, or (b) constructive notice that the appellant claimed title to the property in controversy?

The question must be answered in the negative.

There is no evidence in the cause tending to show that appellee had actual notice of any adverse claim of title by appellant until about a year or eighteen months before the suit, except the testimony of the appellant and the testimony of Mr. Allen.

The testimony of the appellant bears on its face such indicia of unreliability, where it is in conflict with that of the appellee, that we do not regard it as furnishing any evidence which we can consider upon the question before us.

In Mr. Allen’s testimony he says himself that he was giving merely the substance, as he remembered it, of what he said to the appellee, and of what appellee said to bim in the interview in 1900 or 1902. He says: “I don’t pretend to repeat the language of that long ago.” And Mr. Allen had not been informed at that time that appellant held the property merely as a tenant of the appellee by sufferance. Mr. Allen then knew merely that appellant claimed to him that he owned the property. Whereas, appellee, knowing how the appellant obtained possession of the property, had no idea that the son claimed any title to the property itself, and regarded his conversation in 1900 or 1902 with Mr. Allen as being merely upon the question of whether the appellee would continue to allow his son, or Mr. Allen as his assignee, to continue to have the rents from the property. The same different attitudes of mind existed when the subsequent interviews occurred between appellee and Mr. Allen about which the latter testified. And as to what the appellee said, or what he himself said, in such interviews Mr. Allen is not positive. Such being the respective attitudes of their respective minds, and the failure of the evidence to disclose precisely what was said on the occasions involved, the failure of the appellee to understand, from what Mr. Allen may have said, that the appellant claimed title to the property itself, is most natural and highly probable; and the impression which Mr. Allen had when he testified that, by the language he used, he had conveyed to appellee the information that the son claimed title to the property itself, may easily have been a mistaken one, however, genuinely left upon the mind of Mr. Allen. Upon the whole, and especially in view of the positive testimony of the appellee to the effect that he did not so understand what Mr. Allen said to him, we are satisfied that the evidence fails to show that appellee derived from Mr. Allen actual notice that any hostile claim of title was made by appellant.

This leaves the appellant without any evidence in the cause of any actual notice to appellee of any adverse claim of title up until some twelve or eighteen months before the suit.

We come now to consider the second branch of the question before us, namely, whether the appellee had the constructive notice in question?

The law upon this subject is as follows:

Where, as in the instant case, the possession is originally taken under and in privity with the title of the true owner, it may subsequently become adverse without actual notice thereof to the latter, but only in the event that the possession is accompanied by an unequivocal, clear, positive, continued disclaimer of the owner’s title, such as the owner could not mistake, for the whole of the statutory period, and so notorious that there is no other reasonable conclusion than that the owner, under the circumstances, must have had notice thereof. The disclaimer, to constitute such constructive notice, may be proved by circumstantial as well as by direct evidence, and it is not required to be proved so as to preclude all doubt; but that the possession is under claim of title hostile to that of the true owner, must, at the least, be generally known in the vicinity of the land involved for the whole of such period. Baber v. Baber, supra (121 Va. 740, 758-761, 94 S. E. 209); Sedgwick & Wait on Trial of Title to Land, secs. 280a, 281; Caperton v. Gregory, 11 Gratt. (52 Va.) 505; Hulvey v. Hulvey, 92 Va. 186, 23 S. E. 233; and also the cases above cited.

There is no evidence in the case before us anywhere approaching the proof of such notorious disclaimer of title as would give the constructive notice in question so as to have set the statute running and to have kept it running for any period of fifteen years before the suit was instituted. According to the evidence the disclaimer of title so far back as fifteen years before the suit- was made only to one person, Mr. Allen, the' agent and assignee of the appellant, and privately made to him. There was no notoriety about that. There is no evidence whatever that a single other person than Mr. Allen knew, as long as fifteen years before suit, that such disclaimer was made by appellee. And Mr. Allen’s testimony cannot be regarded as showing that he conveyed to the appellee notice of an unequivocal disclaimer of appellee’s title on the part of the appellant, such as the appellee could not mistake.

The only other disclaimer of the title of appellee by appellant is that embraced in his claim that the property was given to him by appellee and that appellant had obtained title by paying taxes, testified to by Mr. McPherson; but that first occurred within less than the statutory period requisite for the acquisition of title by adverse possession, as expressly stated by this witness, who alone testifies to any such claim of title as made by appellant. The same is true of the evidence furnished by the attitude and comments of the sisters of appellant, testified to by McPherson, with regard to the appellant’s claim of title. There is no -evidence of any such attitude or comments extending farther back at most than eleven years prior to the suit.

The decree under review must therefore be affirmed.

Affirmed.