Delancey v. Holcomb.

the presumed knowledge of the deed on the part of Anthony, and his presumed assent to it. And as he seeks to divest an apparent title to land conferred by a deed which had been on record over nine years before this suit was brought, and failed to bring suit until the grantee's lips have been closed by death, it is incumbent on him to make out a case plain, clear and decisive. Admitting, as we do, that the plaintiff's proposition that his brother Anthony, though all the time living in the neighborhood, both of the plaintiff and the land, has never in fact had any notice of the deed, and hence never assented to it, finds very much support in the evidence, yet (and this is the distinct ground on which we place our decision) there is not that fullness, and satisfactory degree of proof which courts ought to require to divest a title against heirs presumptively conferred by a recorded deed of such long standing as the one which is in question in this case.

Affirmed.

26 94

d138 510

DELANCEY V. HOLCOMB.

1. Replevin: DEMAND. A demand in replevin is not necessary where the taking was wrongful.

2.

3.

It was accordingly held, where both parties claimed ownership of a steer, and the defendant, knowing that plaintiff denied his asserted ownership, separated the steer from plaintiff's drove, and took him away, that no demand was necessary in order for the plaintiff to maintain replevin for the animal.

TAKING BY DEFENDANT'S WIFE. Nor would the case be varied by the fact that the animal was driven off by the defendant's wife and sons, if he claimed the benefit of, and defended the act.

Appeal from Delaware District Court.

FRIDAY, OCTOBER 30.

DEMAND IN REPLEVIN. — Replevin for a steer.

Verdict

before justice of the peace, for plaintiff. On appeal, in

Delancey v. Holcomb.

the District Court, there was a mistrial, and subsequently a verdict and judgment for the plaintiff.

The defendant appeals.

J. M. Brayton for the appellant.

W. T. Barker for the appellee.

DILLON, Ch. J.-In the pleadings and on the trial, each party claimed to be the absolute owner of the prop1. REPLEVIN: erty. Plaintiff's theory was, that the animal demand. was the same one which he had before purchased of one Smith. Defendant denied this, and claimed it as his own. It was not the unusual case of controverted identity, and we find the not unusual concomitant of such cases in a bill of costs amounting to over $200. In such cases, the desire and policy of the law to have a finis litium coincide generally with the real interests of the litigants. We find the case, however, of easy disposition without giving any play to considerations of this kind.

Appellant makes but one point. He says the plaintiff should have proved a wrongful taking of the property by the defendant, or a demand before suit brought. Was the taking wrongful? If so, the foundation of the appeal fails. Each party, as before stated, claimed ownership. The bill of exceptions recites, "that the defendant and members of his family had been to the residence of the plaintiff several times before the final taking of the steer, and talked over the question of title and possession, and plaintiff had several times refused to allow defendant to take away the animal; and at the time it was taken, it was running at large upon the prairie with other cattle belonging to the plaintiff, near the residence of the plaintiff and within sight of his house, but upon the commons. It was the wife and two sons of the defend

McNamee v. Moreland.

ant who thus took the property. It was taken without the plaintiff's consent. It was in evidence that the defendant had lost an animal, either the one in controversy or one very similar, about the time of the sale by Smith to the plaintiff. The above was all the evidence shown upon the trial to prove a wrongful taking.”

Two juries have found that the animal was the plaintiff's. Defendant knew that the plaintiff claimed to be the owner, and that he denied the defendant's asserted ownership. Defendant also knew that the plaintiff had several times refused to let him take the property away from the plaintiff's house.

Under these circumstances the act of the defendant in separating the animal in question from the plaintiff's drove was a hostile act, and done at defendant's peril, if he could not show himself to be the owner.

by defendant's

wife.

We say the act of the defendant, for though the animal was in fact driven off by his wife and sons, yet as the 3.- taking defendant claimed the benefit of it, and defended it, we are justified in holding it to be the defendant's own act by reason of a presumed prior command inferable alike from the circumstances, and from its subsequent adoption.

Stanchfield v. Palmer (4 G. Greene, 25), relied on by appellant's counsel, will be found reviewed in the quite recent case of Smith v. McLean (24 Iowa, 322), and has no application to this case, since here there was, as we have seen, a wrongful taking.

Affirmed.

26

96

97 250

26 96 102 157

26 96 108 590

26 96 111 214

MCNAMEE V. MORELAND et al.

1. Adverse possession: STATUTE OF LIMITATIONS. A party relying upon the bar of the statute of limitations in an action for the recovery of real property, must show that he has held for the statutory period, not only by a possession actual, open and adverse, but that it

2.

3.

McNamee v. Moreland.

has been maintained as a right resulting from an exclusive property in and dominion over the estate, and not subordinate to the will of another, or by an agreement with the true owner of the title.

INTENT TO CLAIM TITLE: EVIDENCE OF. It is a material and essential requisite of adverse possession, that the occupancy has been with the intention to claim title; and, as disproving this intent, it is competent to show, by the declarations of the occupant, that he did not hold adversely.

RULE APPLIED; DISPUTED LINE: AGREEMENT: ESTOPPEL.

Where the line between two adjacent owners was in dispute, and they entered into an agreement, that when a final decision was reached in a certain case then pending wherein the question as to the true location of the boundary line was involved, either party should place his fence upon the line which should be established by such decision, it was held, that the party continuing in possession of the tract between the disputed lines, was, in view of such agreement, estopped from claiming, that his possession, prior thereto, was adverse.

4. Estoppel: PREVENTION OF FRAUD. While an estoppel will be suppressed where fraud would be produced by its enforcement, it will, on the other hand, be called into being for the prevention of fraud. 5. Former adjudication: EFFECT UPON PRIVIES IN INTEREST. A prior adjudication settling disputed boundary lines to certain real estate, is binding not only upon the parties of record, but upon one who, as grantor of a portion of the land included between the disputed lines, is a privy in interest with the defendant, and who, in fact, conducts and manages the defense.

Appeal from Delaware District Court.

WEDNESDAY, DECEMBER 9.

ACTION OF RIGHT. - Plaintiff claims of defendants, the heirs and legal representatives of David Moreland, deceased, "a strip of land along the southerly side of the south half of the north half of section 4, 90, 3, and being about, etc.," counting upon a valid title, and claiming all except one-quarter of an acre near the S. W. corner of the N. E. of said section.

McNamee v. Moreland.

The answer denies title in plaintiff, setting up owner ship in defendants, and also quiet, uninterrupted, con tinuous and adverse possession in themselves and their ancestor, David Moreland, with color of title for ten years and more, next preceding the commencement of this action.

Trial, and verdict, generally, for defendants. The jury also answered certain specific interrogations, which will be found sufficiently referred to in the opinion. Motion for new trial overruled, and plaintiff appeals.

B. W. Poor, George Watson and S. P. Adams for the appellant.

(No brief found on file.)

Shiras, Ballou & Van Duzee and T. S. Wilson for the appellee.

I. An actual adverse possession is required under plea of the statute. To constitute an adverse possession there must be some claim or color of title under which the defendant has, in good faith, supposed he had a right to the property, and under which he continued in possession. Jones v. Hockman, 12 Iowa, 108.

An adverse holding is an actual, visible and exclusive appropriation of land, commenced and continued under a claim of right. Angel on Limitations, 473.

If a person enters upon land, and has his claim desig nated by lines marked upon the ground, and uses the woodland by cutting timber from it, the jury may presume an actual ouster of him who has the patent, and the settler may hold all within his lines under the statute of limitations. Heiser v. Riehle, 7 Watts, 35; Criswell v. Altemus, 7 Watts, 580.