Brief Fact Summary. This case involved a dispute between the Plaintiffs, the widow and children of Fred Mercer, deceased (Plaintiffs) and the Defendants, surviving sons of Lora Wayman, deceased, and the widow and daughter of Verne Wayman, deceased (Defendants), to set aside oil and gas leases by the Defendants and to have the Plaintiffs declared the sole owners of the 40 acre tract in question.
Synopsis of Rule of Law. The rule is well settled that the mere possession by one tenant in common who receives all the rents and profits and pays the taxes assessed against the property, no matter how long a period, cannot be set up as a bar against the cotenants.
Adverse possession cannot be made out by inference or implication, for the presumptions are all in favor of the true owner, and the proof to establish it must be strict, clear, positive and unequivocal.View Full Point of Law
Issue. Are the Defendants’ claims barred by the statute of limitations?
Held. No. Reversed.
The rule is well settled that the mere possession by one tenant in common who receives all the rents and profits and pays the taxes assessed against the property, no matter how long a period, cannot be set up as a bar against the cotenants. The possession of one cotenant is considered by law to be possession by all the cotenants.
In order for the possession by one cotenant to become adverse to another cotenant, there must be a disseizen or ouster by some outward act of ownership of an unequivocal character, overt and notorious, and of such nature to impart notice to the cotenant that an adverse possession and disseizen is asserted by the tenant in possession.
The deed to Fred Mercer and wife was ineffective to convey the Defendants’, then minors, interests in the land. Thus, such deed did not constitute color of title and the seven-year statute of limitations (tax title) was inapplicable.
The Plaintiffs, although in possession for thirty-four years, never made any overt act, which would serve as notice to the cotenants that they were claiming adversely to them. The Plaintiffs have failed to meet their burden of proof.
Discussion. This case illustrates the need for adequate legal representation in the preparation of deeds. Consider that the father of the Defendants intended to convey the minors’ interest in the land and there was evidence of that intent. However, because the father did not perform the quitclaim in a legally sufficient fashion, the minors retained an interest. Would the father have quitclaimed his own interest, but intended that his minor sons retain an interest?