
    Rosenstihl et al. v. Cherry.
    
      Adverse possession—Statute of limitations not stopped by decree quieting title, when—Property described in petition by lot number only—Possession of disputed land retained by adverse adjoining owner.
    
    Where in an action to quiet title to real estate the same is described in the petition by lot number only, no specific reference being made to an 18-inch strip of land, a part of such lot occupied for 12 years by an adjoining owner, who claims the same as a matter of right up to the line of a “division fence” erected on such lot by plaintiff’s predecessor in title, pursuant to the requirements of such predecessor’s deed, and such adjoining owner, though made party defendant, filing no answer, a decree in favor of plaintiff is entered by default, quieting the title to the land “as described in the petition,” but making no reference to such strip of ground so occupied by such adjoining lot owner, who continues to occupy said strip as before, for an additional period of 12 years, no possession by plaintiff or his successor in title being taken under such decree, and no interference with such adjoining lot owner or her successors in title, or recognition of plaintiff’s title in said strip of ground by said adjoining lot owner, or her successor in title, being shown: Held, such decree quieting title to said lot so described will not stop the running of the statute of limitations in favor of the adjoining lot owner as to the strip of ground so occupied.
    Adverse Possession, 2 C. J. § 168.
    (No. 19324
    Decided March 30, 1926.)
    Error to the Court of Appeals of Hancock county.
    This is a proceeding in error to reverse the judgment of the Court of Appeals of Hancock county. The facts incident to the controversy, as found by the Court of Appeals in its findings of fact, are as follows:
    “(1) On and prior to December 11, 1899, one Magdalena Myer was the owner of lots 660 and 661 in Vances addition to the city of Findlay, Ohio, which lots according to the official plat of the survey of said addition were each 50 feet wide east and west and 200 feet long north and south. Said lots together with two immediately west thereof constituted a square, which square by actual measurements overruns 2 feet.
    “Said lot 661 is bounded on the east by a street and on the west by said lot 660.
    “(2) On December 11, 1899, said Magdalena Myer sold and conveyed lot number 661 to one Harvey Gr. Clark, who in and as a part of said deed agreed ‘to build at his own expense a division fence between said lot and grantor’s lot adjoining on the west side thereof;’ and in the summer of the year 1900 he built a division fence which he located about 18 inches east of the west line of lot 661. Said Magdalena Myer and her successors in title, who are the plaintiffs herein, have ever since occupied on the west of said fence up to the line thereof, and were in possession of said premises at the time of the commencement of the suit herein under claim of right, and they and their predecessors in title have been in open, notorious, and exclusive possession thereof ever since the building of said fence in the summer of 1900, under claim of right. Different sections of said fence have been removed at different times and none now remains standing.
    “(3) The defendant claims title to lot 661 immediately by deed from one Henry Flater and mediately from said Harvey G-. Clark from whom said Flater acquired his title to said lot. All of said deeds in said chain of title to lot 661 from Magdalena Myer down call for lot 661 in Vances addition to said city. Neither defendant nor either of his predecessors Flater and Clark have ever been in possession of any of the lands west of the line of said fence since its original construction in the year 1900.
    “(4) A number of defects appearing in the chain of title, on February 21, 1912, Henry Flater, who at that time held the deed for said lot 661 and was in possession of all that part east of the line of said fence, the said Magdalena Myer, being in possession west of said fence, brought a suit to quiet his title, in which he alleged that ‘plaintiff is seized in fee simple and in actual possession of the following described real estate situated in the city of Findlay, county of Hancock, and state of Ohio, and known and described as lot No. 661 formerly lot 44 in Vances addition to said city.’ Numerous defendants were named in said petition, among whom was the said Magdalena Myer and the plaintiff, Rose Rosenstihl, who was described as a child of August Myer, who was the deceased husband of said Magdalena Myer. The petition further alleges that the said ‘defendants, and each and all of them, * * * claim some estate and interest in said real estate adverse to plaintiff’s right; said defendants, and each and all of them, have no estate or interest in said premises, and such pretended estates and interests are wholly unfounded and without right and severally cast a cloud upon plaintiff’s title to said real estate.’ The said Magdalena Myer and Rose Rosenstihl were each duly served with summons and all of the defendants made default.
    “And thereafter the court rendered a decree in favor of said Henry Flater as follows, to wit:
    “This cause came on to be heard on the plaintiff’s petition and the evidence, the defendants each and all being in default of answer or demurrer, although duly served by process, which service is here and now found to be in all respects according to law, and the same is by the court hereby approved and confirmed, and upon due consideration thereof the court finds that the allegations of the plaintiff’s petition are true; that at the commencement of this action the said plaintiff was in possession of the real property described in the petition and that he had the legal estate therein, and was entitled to the possession thereof; that neither the defendants, nor any of them, have any estate in, nor are they entitled to the possession of, said real estate or any part thereof, and that the plaintiff ought to have his title and possession quieted as against each and all of said defendants as prayed for in his petition.
    “It is therefore adjudged and decreed that the title and possession of the said plaintiff to the premises in the petition described be, and the same hereby are, quieted against the defendants, and each of them and all persons claiming under them, or any of them; and they are hereby forever en-" joined from setting up any claim to said premises, or any part thereof, adverse to the title and possession, of said plaintiff, his heirs and assigns thereto.
    “It is ordered that the plaintiff pay the costs of this suit taxed at $- for which judgment is rendered against him.
    “(5) Neither Flater nor his successor in title, the defendant, has ever taken any steps to take physical possession of the land now in dispute lying west of the line of said fence.
    “(6) Some time during his ownership of said lot 661 said Henry Flater constructed a cement sidewalk across or along the front or north end thereof, which walk was 50 feet in length measuring from the east side of said lot. The sidewalk in front of said lot No. 660, the property now owned by plaintiffs, was and is a brick walk.”
    The conclusions of law of the Court of Appeals are as follows :
    “And as a conclusion of law from the foregoing facts the court find that said action to quiet title by said Henry Flater established his title to said lot 661 to the full width of 50 feet and estops these plaintiffs from claiming any land east of said 50-foot line, and that the plaintiffs are solely by reason of said decree of quieting said title entitled to have their title and possession quieted to the lands west of said 50-foot line and are not entitled to have their title quieted to any lands in their possession east of said 50-foot line.”
    The court of common pleas had theretofore found in favor of the plaintiffs in error Rose Rosenstihl, William C. Rosenstihl, and Catherine Rosenstihl, a minor, by Charles Rosenstihl, her next friend, and the above decree of the Court of Appeals resulted in a reversal of the findings of the common pleas. Error was thereupon prosecuted to this court to reverse the judgment of the Court of Appeals.
    
      Mr. John E. Betts and Messrs. Axline <& Pendleton, for plaintiff in error.
    
      Mr. Charles E. Jordan and Mr. Boss J. W ether-aid, for defendant in error.
   Day, J.

The paramount question in this case is whether the Flater decree of 1912 estops Rose Myer Rosenstihl, and those claiming with her, from now asserting any rights in the 18 inches between the original lot line as platted and the fence line as established by Clark in 1900, pursuant to the agreement set forth in his deed from Magdalena Myer. The Court of Appeals based its decision solely upon this point, holding that the plaintiffs in error were so estopped.

The proceeding above referred to was begun in 1912 by Henry Flater, predecessor in title of the defendant in error in this proceeding. Flater, we are advised by the findings of fact, at that time held a deed for lot 661, from Harvey G. Clark, and was in actual possession of all that part of said lot east of the line of the fence erected by Clark in 1900; the said Magdalena Myer being in possession west of said fence.

The record discloses, in finding of fact No. 2, that on “December 11, 1899, said Magdalena Myer sold and conveyed lot number 661 to one Harvey G-. Clark who in and as a part of said deed, agreed ‘to build at his own expense a division fence between said lot and grantor’s lot adjoining on the west side thereof,’ and in the summer of the year 1900 he built a division fence which he located about 18 inches east of the west line of lot 661. Said Magdalena Myer and her successors in title, who are the plaintiffs herein, have ever since occupied on the west of said fence up to the line thereof, and were in possession of said premises at the time of the commencement of the suit herein under claim of right and they and their predecessors in title have been in open, notorious and exclusive possession thereof ever since the building of said fence in the summer of 1900, under claim of right. Different sections of said fence have been removed at different times and none now remains standing. ’ ’

The action by Flater was one to quiet title, brought in the ordinary form, the petition averring: That the plaintiff was “seized in fee simple and in actual possession * * * lot No. 661, formerly lot 44, in Vances addition to said city.”

The petition fails to make averments with reference to the specific strip of land in dispute in the case at bar. The decree was by default and the journal entry recited that the title and possession of the premises in the petition described were in the plaintiff, and quieted the same against the defendants and those claiming under them, and they were enjoined from setting np any claim adverse to the title and possession of the plaintiff.

The finding of facts further discloses that neither Flater nor his predecessors or successors in title have ever taken any physical possession of the land now in dispute lying west of the line of the fence, nor does the record show any writ of possession or any attempt to enjoy the fruits of this decree quieting title, so far as the same relates to the strip of land in dispute. On the contrary, the finding of facts discloses that the plaintiff in error in the present proceeding, and her predecessors in title, at all times before and after said decree quieting the title, were in the open, notorious, exclusive possession of the land up to the line of the old fence, from 1900 down to 1924, under a claim of right.

Under such a record, does this action to quiet title stop the running of' the statute of limitations as against plaintiffs in error?

It is to be noted that the decree in question never was reduced to an actual enjoyment of that portion of lot 661 which is in controversy in this case, nor was any possession thereof had under said decree. On the contrary, Mrs. Myer and her successors continued to occupy adversely to Flater and his successors for a period of 12 years after the quieting title suit.

The law upon this point is stated in 2 Corpus Juris, p. 109, Section 168, as follows:

“According to the weight of authority the mere recovery of a judgment in ejectment will not of itself stop the running of the statute of limitations. There must he an actual change of possession by virtue of such judgment, and where plaintiff in ejectment neglects to enforce his judgment within the period laid in his demise, his right of entry under that judgment is altogether gone.”

In a note on the subject of a suit affecting the title to real estate not prosecuted to an actual change of possession as tolling the statute of limitations, the editors of L. R. A., 1918A, at page 1046, say:

“The courts are practically in harmony in holding that where an action of ejectment or an action to try the title to or obtain the possession of real estate fails, or does not result in a judgment in favor of the plaintiff which is prosecuted during the life of the judgment to an actual ouster of the defendant and the taking possession of the land in controversy by the plaintiff, or the clear recognition of the plaintiff’s title by the defendant, it does not have the effect of suspending or tolling the running of the statute of limitations in favor of- the defendant against an independent action. ’ ’

Numerous cases are cited in support of this text.

The following cases will be found to be in support of the principle that a judgment in an action to quiet title adjudicating possession of land and awarding it to one of the parties, but under which judgment no possession is taken, nor any recognition of plaintiff’s title is made by a defendant holding adversely, is insufficient to interrupt the running of the statute of limitations: Bessler v. Powder River Gold Dredging Co., 90 Or., 663, 176 P., 791, 178 P., 237; Hodgkins v. People’s Water Co., 177 Cal., 730, 171 P., 945; Lessee of Smith v. Trabue’s Heirs, 1 McLean, 87, Fed. Cas., No. 13116; Bellenger v. Whitt, 208 Ala., 655, 95 So., 10; Forbes v. Caldwell, 39 Kan., 14, 17 P., 478; Milwee v. Waddleton, 147 C. C. A., 663, 233 F., 989; Carpenter v. Natoma Water & Mining Co., 63 Cal., 616; Doe ex dem. Bright v. Stevens, 1 Houst., (Del.), 240; Bradford v. Wilson, 140 Ala., 633, 37 So., 295; Duffy v. Duffy, 20 Pa. Super. Ct., 25 (in which Pennsylvania cases are discussed); Rook v. Greenewald, 22 Pa. Super. Ct., 641.

Authorities are not, however, uniform upon this question, and the following cases will be found to hold the contrary view: Rogers v. Johnson, 259 Mo., 173, 168 S. W., 613; Wade v. McDougle, 59 W. Va., 113, 52 S. E., 1026; Oberein v. Wells, 163 Ill., 101, 45 N. E., 294; Perry v. Eagle Coal Co., 170 Ky., 824, 186 S. W., 875.

Under the facts as disclosed by this record, considering the agreement shown by the deed between Magdalena Myer, the original grantor, and Clark, the original grantee, “to build at his own expense a division fence between said lot and grantor’s lot adjoining on the west side thereof,” the actual occupation by the respective parties of the property up to this division line from 1900 down to 1924, and the further fact that in the petition in the quieting title proceeding in 1912 no mention is made of any dispute as to the 18 inches in question, we hold such a decree quieting title does not toll the statute of limitations. Although actual possession of lot 661 is averred in the petition in the quieting title case, yet the finding of facts in the instant case by the Court of Appeals discloses that, in fact, Mrs. Myer had actual possession of the 18-inch strip during all the time. So that any possession thereof at any time by Flater would be impossible.

The petition must be construed to "mean such possession of lot 661 as Flater actually enjoyed at the time. Pleadings are to be construed as referring to the conditions surrounding the parties at the time of filing, unless the contrary appears. It was only so much of lot 661 of which Flater was in possession for which he was entitled to have his title quieted. The fence agreement in Flater’s predecessor’s deed and the construction placed thereon by the parties after its erection, by each party occupying up to the line thereof, indicate that so much of lot 661 as then occupied by the parties was in contemplation when the suit was filed to remove the various clouds from the title of lot 661.

We are therefore not disposed to regard the quieting title action of 1912 as stopping the running of the statute of limitations under the facts surrounding these parties as disclosed by the record. The situation before us is that, notwithstanding the decree quieting title, plaintiffs in error still remained in the actual possession of said strip of land, which would clearly be an adverse holding. They are saying, in effect:

“Notwithstanding all your claims and all your decrees, I am still here in possession and have been now for 24 years, claiming openly, notoriously, exclusively, a title adverse to you and to all others, whereby I have become the owner in fee simple, based on which I have brought this action against you.”

Both parties to the quieting title case, enjoying their property up to the line of the division fence erected by agreement, might well have considered that no claims were made by either party to the property of the other lying beyond the line of the old fence. At any rate no advantage was ever taken of the decree by Flater or his successors and no attempt was made to challenge the possession and occupancy of present plaintiffs in error or their predecessors in title until after the statute of limitations had run. “Equity comes to the vigilant and not to those who slumber on their rights.”

Not having seen fit to enforce whatsoever rights might have been enforced under this decree, we now think that it is too late to assert the same; hence our conclusion is that the plaintiffs in error are not estopped to assert their title by prescription to the strip of land in question.

It is argued by counsel for plaintiffs in error that the line fixed by the parties at the time of the deed between Mrs. Magdalena Myer and Harvey Gr. Clark became the true boundary line and that both parties using and enjoying their property up to said line the same became the true division line by agreement, before the statute of limitations had run. Without discussing this point, it is sufficient to say that the finding of the Court of Appeals fully justifies the view that the enjoyment from 1900 down to 1924 by the plaintiffs in error and their predecessor in title was such as to clearly establish a prescriptive title.

That a prescriptive title may be acquired by a grantor as against grantee is well established by the authorities. The rule is well settled in 1 Ruling Case Law, p. 752, Section 76, as follows:

“But it is well settled that a grantor of land may originate a possession adverse to his grantee, and that such possession differs from that originated by a stranger only in requiring stronger proof to sustain it. The grantor must manifest his intention to hold adversely by some unequivocal act of hostility. As a rule, continued open and notorious possession by a grantor will be deemed to be adverse where it is of such a character as to be entirely inconsistent with the rights of the grantee. Thus the grantor’s entry after conveyance must be deemed to be adverse where there is no evidence that he entered for or under the grantee, but where he acted in all respects as the sole owner, making leases, receiving rents, paying-taxes, improving the property, etc. So the refusal by a grantor, in possession of the premises, to surrender them to the grantee, is notice to the latter that he must proceed to vindicate his rights, and, if he delays in doing so beyond the statutory period, his deed cannot prevail against his grantor’s adverse possession.”

See, also, 2 Corpus Juris, p. 145, Section 250.

We think the circumstances disclosed by this record bring the parties within the rule as above set forth.

Nor do we think the circumstance that Plater constructed a cement sidewalk along the front of lot 661 for a length of 50 feet is to be regarded as militating against the rights of Magdalena Myer and those claiming under her. This work was, of course, outside the lot line and no part thereof lay upon the strip of land occupied adversely by Magdalena Myer. The fact that Flater permitted the said Magdalena Myer to continue in the open, notorious, and adverse possession of this strip of land after he had constructed a sidewalk of 50 feet in length is a circumstance in favor of the adverse character of the holding of Mrs. Myer, and a recognition thereof by Flater.

Finding that the action to quiet title in 1912 did not stop the running of the statute of limitations, that the title of plaintiffs in error to the premises in question is paramount to that of the defendant in error, it follows that the judgment of the Court of Appeals must be reversed. The findings of fact of the Court of Appeals justify a decree in favor of the plaintiffs in error.

Final judgment is rendered for the plaintiffs in error, as prayed for in the petition.

Judgment reversed.

Marshall, C. J., Matthias and Allen, JJ., concur.  