Owsley v. Matson

SHAW, J.

The defendants have appealed from the judgment within sixty days after its rendition and entry, and the evidence is set forth in a bill of exceptions. The contention of the appellants is that the decision is not supported by the evidence.

The plaintiffs sued to recover possession of two tracts of land, constituting parts of a larger tract of 43.33 acres, all of which is claimed by the defendants. The pleadings are not verified. The answer denies all the allegations of the complaint, and avers that the action is barred by the provisions of sections 318 and 319 of the Code of Civil Procedure. The defendants also filed a cross-complaint averring that they were the owners of the 43.33 acres described and also that the claim of the plaintiffs is based on a deed to one Boeing, plaintiffs’ predecessor in interest, by Jesse C. Greenlaw, defendants’ predecessor in interest, dated March 14, 1887, whereby the land claimed by plaintiffs appeared, by mutual mistake, to have been transferred to Boeing, contrary to the intention of the parties, and praying that the deed be reformed and that the title of defendants be quieted. The claim of the defendants that they were the owners of the 43.33-acre tract was based upon an asserted adverse possession and upon the alleged mistake.

Upon the question of adverse possession the court found that the defendants had gained title by that means to a part of the land in dispute and gave judgment in favor of the defendants for that part. As to the remainder of the two overlapping parcels the findings and judgment were in favor of the plaintiffs. The defendants’ contention is that the findings on the subject of the mistake and as to the ownership of the parcels adjudged to the plaintiffs are contrary to the evidence. It is unnecessary to consider at length the question of the alleged mistake. We are of the opinion that the court should have found that the defendants had gained a prescriptive title to the entire tract of 43.33 acres by ad

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verse possession thereof under color of title. L. B. Matson does not appear to have any interest. She was evidently made a party defendant because she is the wife of Isaac Matson.

On November 29, 1897, Mary E. Greenlaw and Alfred Greenlaw conveyed to one Edward Greenlaw the 43.33 acres in controversy, describing it accurately by metes and bounds. On June 24, 1898, the decree of distribution of the estate of Jesse C. Greenlaw, deceased, was entered in the superior court and by its terms the 43.33-aere tract in question was distributed to Edward Greenlaw, the tract being accurately described as in the deed last mentioned. On July 15, 1905, Edward Greenlaw conveyed the 43.33 acres by the same description to the defendant, Isaac Matson. From the time of the execution of the deed to Edward Greenlaw in November, 1897, up to the time of the execution of the deed from said Greenlaw to Isaac Matson in 1905, Edward Greenlaw was in the actual possession of and was occupying and cultivating a large part of the 43.33 acres and was claiming title to the whole thereof under the aforesaid deed and decree, up to the boundaries described. When the deed was made to Matson, Greenlaw delivered his possession thereof to Matson, who continued in possession as Greenlaw had been, from that time until shortly before this action was begun, claiming title to the entire tract. Neither the plaintiffs, nor their predecessors in interest, were ever in actual possession of any part of the tract. The action was begun on February 15, 1906. It is further shown that for the years 1899 to 1905, inclusive, this tract was assessed to Edward Greenlaw and that he had paid the taxes thereon. The evidence did not show an actual occupation, cultivation, or inclosure by Greenlaw or Matson of the whole of the parcels awarded to the plaintiffs. It does show, however, an actual occupation and cultivation by them of a considerable part thereof and that they each claimed title to the entire tract up to the limits described in the deed and decree. It is clear that under these circumstances actual possession and occupancy of the entire tract was not necessary in order to give title by adverse possession. That the deed of November 29, 1897, and the subsequent decree of distribution in 1898, constitute color of title cannot be disputed.