Montgomery & Mullen Lumber Co. v. Quimby

SHAW, J.

The defendant appeals from the judgment and from an order denying a new trial.

This, action was begun on June 12, 1906. The complaint states, in the usual form, a cause of action to quiet title to a town lot. The defendant answered on March 1,1910. Thereupon leave was granted by the court to the plaintiff to file a supplemental complaint, and on March 11, 1910, such supplemental complaint was filed. It alleged that ever since the, nineteenth day of November, 1903, it had been in the open, exclusive, and uninterrupted adverse possession of the lot, claiming title and right of possession against defendant and all others, and had paid all taxes assessed thereon, its claim being founded on a deed from C. R. Davis and wife executed on November 18, 1903, purporting to convey said lot to the plaintiff. Issue was joined on these allegations. The court found that the plaintiff was, and had been ever' since November 20, 1908, which was five years after its alleged adverse possession began, the owner in fee of the lot, that defendant had no right or title thereto, and had had none since the last mentioned date, and that the facts alleged in the supplemental complaint were true.

The only point urged is that the finding that plaintiff had gained title by adverse possession is not sustained by sufficient evidence. The original claim of plaintiff that it was the owner of the lot on June 12,1906, as alleged in its original complaint, appears to have been abandoned by it at the trial and it relied wholly on the title by adverse possession as alleged in the supplemental complaint. No objection appears to have been made to the filing of this supplemental complaint or to the presentation and determination of plaintiff’s cause of action as therein stated. The appeal must therefore be consid

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ered as if the action had been begun on March 11, 1910. The supplemental complaint states the cause of action adjudicated.

It was admitted at the trial that the defendant, in 1888, owned the property subject to a mortgage, the amount of which is not shown, that said mortgage was afterwards foreclosed and the lot sold on foreclosure sale, that the defendant was not served with summons in said foreclosure suit and did not appear therein, that on November 18, 1903, Davis, the successor of the purchaser at the foreclosure sale, executed a grant deed to the plaintiff, purporting to convey to it the said lot, and that plaintiff immediately took possession thereof and has paid all taxes thereon regularly ever since.