Flathead Lumber Corp. v. Everett , 127 Mont. 291 ( 1953 )

MR. JUSTICE ANGSTMAN:

Plaintiffs commenced this action to quiet title to 160 acres of land situated in Flathead County. The amended complaint which was filed on September 4, 1951, alleges ownership and actual possession by plaintiffs and that defendants, without right, claim some interest adverse to plaintiffs. It prays that defendants be required to set forth their claims and that they be determined to be without right and that it be declared that plaintiffs are the owners of the premises.

On November 20, 1951, defendants filed their answer, which consisted of a general denial and separate defense claiming ownership in defendants by adverse possession. They allege in the separate defense, actual, exclusive, open, visible, notorious, hostile, continuous and adverse possession “for more than ten years last past.” They prayed that plaintiffs be required to set forth the nature of their claims and that it be declared that defendants’ title be quieted in them and that it be adjudged that they are the owners and that plaintiffs be declared to have no right, estate or interest in the property.

On January 8, 1952, defendants filed motion for judgment on the pleadings for want of a reply to the answer. On February 18th the default of plaintiffs for failure to file a reply was entered and the motion for judgment on the pleadings was heard. The motion was granted by an order signed April 11th and filed April 14th. Formal judgment was likewise filed on April 14th. Plaintiffs have appealed from the judgment.

While other questions have been argued in the briefs, the only question requiring consideration is that of whether the separate defense states facts sufficient to constitute a defense.

It is well settled that title by adverse possession is a good defense in a suit to quiet title where the elements necessary to constitute adverse possession are established. 74 C. J. S., Quieting Title, sec. 43, page 67.

The statute relied on by defendants is R. C. M. 1947, sec. 93-2505, reading: “No cause of action, or defense to an action, arising out of the title to real property, or to rents or profits out of the same, can be effectual, unless it appear that the person prosecuting the action, or making the defense, or under whose title the action is prosecuted or the defense is made, or the ancestor, predecessor, or grantor of such person, was seized or possessed of the premises in question within ten years before the commencement of the act in respect to which such action is prosecuted or defense made. ’ ’

Other statutes bearing upon the question are sections 93-2507, 93-2504 and 67-1203, reading:

“In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the property is presumed to have been possessed thereof within the time required by law, and the occupation of the property by any other person is deemed to have been under and in subordination to the legal title, unless it appear that the property has been held and possessed adversely to such legal title for ten years before the commencement of the action. ’ ’ Sec. 93-2507.

“No action for the recovery of real property, or for the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the property in question within ten years before the commencement of the action. No action for the recovery of dower can be maintained by a widow unless the action is commenced within ten years after the death of her husband.” Sec. 93-2504.

“Occupancy for the period prescribed by Title 93 as sufficient to bar an action for the recovery of the property confers a title thereto, denominated a title by prescription, which is sufficient against all.” Sec. 67-1203.

It is to be noted that defendants did not plead that they had been in the exclusive possession of the property in question for ten years before the commencement of the action, but alleged that they had been in possession for more than ten years last past. The allegation was made in the answer which was filed more than two months after the .amended complaint was filed. The record does not reveal when the action was commenced, but of necessity it was commenced some time before the filing of the amended complaint.

The most that can be said by failure to reply is that plaintiffs admitted the possession for ten years before the answer was verified. The rule is that the bringing of an action against one in adverse possession disputing his title arrests the running of the statute. Welner v. Stearns, 40 Utah 185, 120 Pac. 490, Ann. Cas. 1914C, 1175; 2 C. J. S., Adverse Possession, sec. 127 (3) c, page 684, sec. 153 b, p. 723. And see Northern Pac. R. Co. v. Cash, 67 Mont. 585, 216 Pac. 782.

During the pendency of the action defendants can acquire no new right as against plaintiffs by the mere fact that they remain in possession. 1 Am. Jur., Adverse Possession, sec. 180, p. 891; Breon v. Robrecht, 118 Cal. 469, 50 Pac. 689, 51 Pac. 33, 62 Am. St. Rep. 247; St. Paul, M. & M. R. Co. v. Olson, 87 Minn. 117, 91 N. W. 294, 94 Am. St. Rep. 693; Portis v. Hill, 30 Tex. 529, 98 Am. Dec. 481. It follows that a pleading of adverse possession by defendants for ten years is insufficient to constitute a defense unless it is alleged that the ten years were before the commencement of the action. Gates v. Solomon, 73 Ark. 8, 83 S. W. 348. And the ten-year period must have been completed at the time the suit was commenced, or it will avail defendants nothing. 2 C. J. S., Adverse Possession, sec. 166, note 49, page 740.

Defendants contend that the allegation is sufficient to admit proof that there was possession for ten years before the action was commenced. The question of what proof is admissible under the allegation cannot arise on a motion for judgment on the pleadings. DeVore-Norton v. Brotherhood of Locomotive Firemen, 132 Okl. 330, 270 Pac. 12, 60 A. L. R. 586.

On such a motion the pleadings alone may be resorted to. And for failure to file a reply plaintiffs must be held to an admission only of those matters which are pleaded.

An admission that defendants were in possession continuously for ten years before November 20, 1951, is not an admission that they had been in continuous possession for ten years before September 4, 1951, the day the amended complaint was filed or for ten years before the commencement of the action. It follows that the court erred in sustaining the motion for judgment on the pleadings and in entering judgment thereon for defendants.

The case of State v. Quantic, 37 Mont. 32, 94 Pac. 491, 498, is not in conflict with the views herein stated. In that case the answer claimed possession of a ditch and water right ‘! for more than ten years last past” but the whole of the allegation was as follows: “* * * that continuously since the 13th day of April, 1891, each year, and for more than ten years last past, this defendant and his grantors and predecessors in interest have been in the exclusive, open, notorious, and adverse possession of the said water ditch and water right * * The opinion does not show when that action was commenced but it must have been after 1906 because the complaint alleged that defendant in that year diverted the waters in question. Hence the answer in that case, alleging as it did, that defendant had been in possession continuously since April 13, 1891, necessarily averred that he had been in possession for more than ten years before the commencement of the action.

The judgment is reversed and the cause remanded with directions to set aside the order sustaining and to enter an order denying the motion for judgment on the pleadings and to permit defendants to amend their answer if they so desire tendering the issue of adverse possession for ten years before the commencement of the action and to permit plaintiffs to file a reply thereto.

ASSOCIATE JUSTICES BOTTOMLY, FREEBOURN and ANDERSON, concur.