North v. Hammer , 34 Wis. 425 ( 1874 )

Cole, J.

In the disposition of this case we shall confine ourselves to a consideration of a single question, which presents an insuperable bar to the relief asked by tbe plaintiff, so far' as these defendants are concerned.

The defendants John G. and Esther Hammer set up in their answer as a second defense to the action, that on the 17th of January, 1856, Esther Hammer entered into the possession of the west half of lot 50 under claim of title exclusive of any other right, founding such claim on a deed from Edmund Delaney and wife as a conveyance of the lands to her; and that she has been in the continued occupation of said lands so conveyed by said deed, under such claim of title, for more than ten years last past and next before the commencement of this suit, during all which time the lands have been cultivated and improved by her, and have been protected by a good and substantial inclosure.

The court below found as a matter of fact that this defense was established by the evidence offered on the trial, so as to bring the case fully within the ten years limitation for barring the action. Our statute enacts that whenever it shall appear that the occupant, or those under whom he claims, entered into possession of any premises under claim of title exclusive of any other right, founding such claim upon some written instrument as being a conveyance of the premises in question, and that there has been a continued occupation and possession of the premises included in such instrument, or some part thereof, under- such claim, for ten years, the premises so included shall be deemed to have been held adversely, and the right of the real owner to such lands shall be barred. Sections 5 and 6, ch. 138, R. S. Now, as the evidence is entirely conclusive upon the point that the defendant Esther Hammer entered into the possession of the west half of lot 50 in 1856, under a claim of title exclusive of any other right, founding-such claim upon a deed from Delaney to her of the premises, and that this possession has continued without interruption for the whole period prescribed by the statute, her title must be deemed good even as against the original owner. This is the plain meaning and obvious effect of the provisions above cited.

It appears that in 1850 the land in controversy was owned by one Sampson. The plaintiff claims that in August, 1851, Sampson gave him a deed of the land, as security for a debt, he giving back a bond for the reconveyance of the property on payment of his debt in August, 1852. On the part of the defendants it is claimed that Delaney recovered a judgment before a justice of the peace against Sampson ; and that in December, 1850, a transcript of this judgment was filed in the office of the clerk of the circuit court of Calumet County, and ■was duly docketed on that day; that in August following, and before the execution of the deed by Sampson to the plaintiff, an execution was issued upon such judgment out of the circuit court, and the west half of lot 50, with other lands, was sold to Delaney, who obtained a sheriff’s deed for the same in 1854.

Yarious objections are taken to the sale on the execution, and to the title derived through the sale; and it is claimed that the interest of the judgment debtor was not divested by it. But we shall not dwell upon these objections to determine whether they are valid or not; because, in the view we entertain of the case, the bar is effectual although the defendant Esther may not have acquired a rightful title under the execution sale. In order to constitute adverse possession under the statute, it is not necessary that the title under which the party claims should be a good one. It is sufficient that a party enters into possession under claim of title exclusive of any other right, founding such claim upon some written instrument. It is not essential that the claim upon which an adverse possession is founded is made upon an instrument which conveys a valid title. If adverse possession could only be based upon an instrument which conveyed a good and perfect title, it is apparent that the statute would be of little value. Of course the rule is that the party in possession must claim the entire title, to the exclusion of all others, and he must not admit that he is in possession in subordination to a higher title in another. But where this is the character of the claim, it is immaterial how defective the proper title may be upon which the adverse possession is founded. Our statute upon this subject is substantially the same as that of New York; only the period of limitations in' that state is twenty years. And the courts in that state have held that to constitute an adverse possession it is not necessary that the title under which the party claims should be a good one, but it must be under color and claim of title exclusive of any other right, and the possession must be adverse and hostile to the one entitled to the possession. Smith v. Burtis, 9 Johns., 174; Smith v. Lorillard, 10 id., 337; Jackson v. Ellis, 13 id., 118; Jackson v. Wheat, 18 id., 40; Jackson v. Newton, id., 355; Jackson v. Woodruff, 1 Cowen, 276; Northrop v. Wright, 7 Hill, 476; Roseboom v. Van Vechten, 5 Denio, 424; Clarke v. Hughes, 13 Barb., 147; Mosher v. Yost, 33 id., 277. In Northrop v. Wright, Chancellor Walworth says : “ To constitute an adverse possession of land, an entry under color of claim of title is sufficient; and it is wholly immaterial whether the title afterwards turns out to be valid or invalid. Nor is it material whether the conveyance under which the entry is made does or does not contain covenants of warranty. Where the sheriff, therefore, sells lands upon execution, of which land the judgment debtor is in possession, claiming under a devise in fee, and the purchaser takes possession under the sheriff’s deed, and continues in possession for more than twenty years, by himself or his grantees, and there is nothing in the circumstances to induce a belief that the purchaser at such sale knew the judgment debtor had no title, the legal inference is, that the possession is adverse to the whole world. And unless something afterwards occurs to change the adverse character of the possession, the • right of the real owner is barred. And the result will be the same where the entry is under color of a conveyance from the sheriff, although such conveyance is not upon its face sufficient to convey the legal title to the land. (Jackson v. Newton, 18 Johns., 355.) And the fact that the purchaser from the sheriff is afterwards induced to doubt the validity of his title under the sheriff’s sale, where he continues in possession under the same, will not destroy the adverse character of that possession.” pp. 488, 489. See also Stevens v. Brooks, 24 Wis., 326; Jones v. Billstein, 28 id., 221.

The above remarks of the chancellor are strictly applicable to the facts of this case. Eor the testimony very clearly shows that Esther Hammer purchased the tract of land claimed by her, and of which she has been in possession since 1856, of Delaney, paying therefor a full consideration. She took the deed as conveying to her the full title, and entered into possession claiming the land as her own absolutely, and justifies and maintains her possession by virtue of this conveyance. Her possession has been hostile from the first, not acknowledging any right of the plaintiff or of Sampson, or 'of any other person, in the land ; and if there is any efficacy in the statute, her title has ripened into a perfect one, whatever defect there might have been in the execution sale. If she knew of the plaintiff’s claim to the land, either at the time or after she purchased of Delaney, she denied that this claim was of any validity, and never acknowledged it in any manner. It is assumed that she only purchased an equity of redemption, and subject to the plaintiff’s mortgage. But it seems to us that this assumption is opposed to all the facts and proofs in the case. Eor the evidence conclusively shows that she supposed she was getting a perfect title — that the interest of Sampson had been divested by the sheriff’s sale; or at all events that the conveyance from Delaney to her carried the fee, and not merely the equity of redemption. And since the character of her possession has been hostile and adverse from its inception, under this deed, the statute of limitations has run in her favor, even if there was a defect or irregularity in the sale upon the execution against Sampson.

These views are decisive of the case. The judgment of the circuit court must be affirmed.

By the Court. — Judgment affirmed.