Hamachek v. Duvall , 1908 Wisc. LEXIS 115 ( 1908 )

Winslow, 0. J.

We have carefully examined the evidence and find no good ground for- disturbing any of the findings of fact which were in dispute upon the trial concerning the location of the lines of the original gift or the. character and extent of the plaintiff’s possession since April, 1880.

A serious question arises, however, as to the legal effect of certain facts found by the court upon the plaintiff’s claim of continuous adverse possession. These facts were not referred to in the preliminary statement of the case, but will now be stated. In the latter part of 1883 one Janda bought a half interest in the property and business of the firm, and a partnership was formed known as Hamachek & Janda, which conducted the business until some time in 1886, when Janda sold and conveyed his interest back to Hamachek, since which time Hamachek has operated the business alone. At the time this partnership was formed no deed had been executed by Duvall to Hamachek, and Janda did not know where the lines were nor where Hamachek claimed they were. In June, 1885, Janda made application to Duvall for a conveyance, and Duvall caused a survey to be made of the premises and the lines run according to his version of the original agreement, and executed a warranty deed thereof running to both partners and delivered it to Janda. At this time Hama-chek was not in Kewaunee, and knew nothing of the execution of the deed until a few days later, when he returned and was" shown the deed by Janda. The deed was recorded, but Hamachek immediately protested to Duvall that it did not convey all the land agreed, and renewed these protests from time to time during the continuance of the partnership and afterwards. The court found, however, that it was not proven by preponderance of the evidence that Janda knew that the deed did not describe all the land which Duvall promised to convey, or that he knew that the firm was claiming to hold adversely any land outside of the calls of the deed. The court also found that in 1886 or 1881 Janda retired from the firm, conveying the firm property to' Hamachek by bill of sale and deed, which deed described only the same property as that described in Duvall's deed, but that he intended to convey by these instruments all the 'partnership^ property and assets of which he had any knowledge, although no evidence shows that he intended to transfer any right or interest in any land not included in the description in the Duvall deed.

The court further found that the continuous and exclusive possession and use of the whole tract lying east of the traveled roadway was held by Hamachek down to the time when the partnership was formed, by the firm during the existence of the partnership, and by the plaintiff since its dissolution, and that plaintiff’s holding had been open and adverse to the defendant at all times since April 20, 1880. It seems somewhat surprising that Janda should not have known of the extent of the claim nor of H amáchele1s dissatisfaction with the Duvall deed, nor yet of the protests to Duvall of the insufficiency of the deed; nevertheless the findings of the court are based upon sufficient evidence and the facts in themselves are not incredible, hence we must accept them. As this action was commenced in August, 1905, and the partnership holding did not terminate until some time in 1886 or 1887, it is evident that if the possession of the land was not in a legal sense adverse during the existence of the partnership the plaintiff cannot recover, because there had not been twenty years’ continuous adverse possession at the time the action was commenced. So the important question is presented whether the fact that Janda did not know of the adverse claim, and made no claim himself beyond the calls of the deed of 1885, operated to deprive the holding of the firm of its hostile and adverse character and thus interrupted the running of the statute of limitations.

There was no change of the physical possession during the firm occupancy nor in its exclusive character. The defendant did not retake possession nor was there any acknowledgment of his right to do so, unless the acts of Janda and the reception of the deed can be so construed. Hamacheh’s possession from its inception in 1880 was hostile, exclusive, and under claim of right. The fact that the strips were not-included within the calls of the deed of 1885 does not of itself deprive his holding of its adverse character. Gilman v. Brown, 115 Wis. 1, 91 N. W. 227. Continuous and exclusive possession for the statutory period raises the presumption that the possession was adverse and perfects the title in the possessor, unless the other party affirmatively shows that for a part of the time at least the possession was not in fact adverse. Illinois S. Co. v. Jeka, 119 Wis. 122, 95 N. W. 97. Was the adverse holding interrupted during the existence of the partnership by the fact that Janda made no claim and was ignorant of Hamache¥s claim? No authorities were cited to us by counsel on this exact question nor have we found any. This is not a case where the possession was mixed, the holder of the record title being in possession of a part, nor is it a case where there has been a running contest for possession between the' title holder and the claimant. Duvall has never been in actual possession of the strips since April, 1880, and, on the other hand, Hama-cheh has been in actual hostile possession during the whole time — as well during the existence Af the partnership as during the balance of the time, for a- tenant in common has the possession of no particular part, but he has the entire possession as well of every part as. of the whole. Buswell, Lim. & Adv. Pos. § 296. Under sec. 4207, Stats. (1898), Duvall manifestly could maintain no action for the recovery of the land at the time this action was commenced because he had not been seised or possessed of the premises at any time within the preceding twenty years. As between Hama-chelc and Duvall, we cannot see in principle how it can be said that there has ever been any interruption of Hamache¥s exclusive and hostile possession or a moment’s time when Duvall recovered his possession either actually or in legal effect.

Two further contentions remain to be considered. It appears that no lands were assessed to Hamachelc prior to 1885, and that Duvall paid the taxes on the whole of government lot 4 during the years from 1880 to 1885. It further appears that after the recording of the deed in 1885 the tract described in the deed was assessed to Hamachelc and he paid taxes upon that description alone, while Duvall paid the taxes assessed on the balance of the government lot. These facts are urged as persuasive indications that Hamache¥s bolding was not hostile. The fact that the claimant fails to pay taxes upon the land adversely claimed is a fact to be considered in judging of the character of the possession, but it is by no means conclusive. It may be satisfactorily explained. Hamachelc testified that when, during the years from 1880 to 1885, he frequently asked Duvall for a deed, Duvall would say, “When I get the laud platted you will get your deed;” and when plaintiff still insisted, “I am not bothering you. I am paying taxes on there. Can’t you be satisfied?” Hamachelc further testified that after 1885 he paid all the taxes that the assessor asked for, and thought he was paying all his taxes. The court deemed that under the circumstances his nonpayment of taxes was not fatally inconsistent with his adverse claim of ownership-, and we cannot say that the conclusion is unwarranted.

An error is claimed in the exclusion of evidence. It appears that on the 19th of March, 1880, an article was published in a Kewaunee newspaper giving an account of Du-valFs proposed donation and describing the lot to be donated as a tract 70 feet by 125. The defendant attempted to prove the publication of this article, but on objection it'was excluded. The ruling was clearly right. At the time of the publication of the article Hamachelc. had not gone into possession of the land or even accepted the proposition. The newspaper statement was the purest hearsay so far as he was concerned, and in no way could be considered as affecting his lights.

By the Court. — Judgment affirmed.