
    ADVERSE POSSESSION — EJECTMENT.
    Marvin, Winch and Henry, JJ.
    [Cuyahoga (8th) Circuit Court,
    December 22, 1905.]
    
      Rebecca Heller v. David R. Hawley.
    1. Plaintiff in Ejectment may not Show Defective Title in Defendant, Arising from a Common Predecessor unless Defendant Claims Title from such Predecessor.
    In a suit in ejectment, where the defendant admits possession and asserts title hy adverse possession, she and her grantors having been in adverse possession for over thirty-five years and having claimed the premises, it is error to allow the plaintiff to introduce evidence tending to show that the same person from whom he claimed a record title is also the predecessor of the defendant hy mesne conveyances improperly containing in their descriptions the land in dispute. ■ He could show such failure of title in the defendant, subsequent to their common predecessor, only on a claim by the defendant of title coming originally from such common predecessor.
    2. Adverse Possession need not be “Undisputed.”
    It is error for the court to charge that adverse possession sufficient to establish title must he not only “open, notorious, continuous, and adverse,” but also “undisputed.”
    [Syllabus approved hy the court.]
    ERROR to Cuyahoga common pleas court.
    Arnold Green, for plaintiff in error.
    Solders & Solders, for defendant in error.
    
      
      Dismissed by plaintiff at his costs, Hawley v. Heller, 51 Bull. 240.
    
   MARVIN, J.

Suit was brought in the court of common pleas by Hawley to recover possession from Heller of certain real estate in the possession of Heller. The petition was in the usual form of a petition in ejectment, ■setting up that Hawley was the owner, and that Heller was in possession and unlawfully kept him out of such possession.

Heller answered, setting up three defenses:

First. She denied the ownership and right of possession of Hawley. She admitted that sh^ was in possession and averred that she was the -owner of the premises in fee simple.

Second. She averred that under a claim of title and by virtue of a warranty deed, she had been in open, notorious, continuous, adverse and undisputed possession of the premises for many years, and that L. E. Holden, from whom she purchased and who delivered the possession to her, had been in like manner since January 4, 1872, a period of about thirty years before the bringing of the action, in open, notorious, continuous, adverse and undisputed possession of the same premises, and that the persons from whom he derived title had been in like possession for many years, and that the right of the plaintiff: to maintain any action for the possession of the premises for the reason that she and those under whom she claimed her title had been in such adverse possession for at least thirty-five years.

Third. She repeats her averments of adverse possession; says that for over thirty-five .years she and her predecessors in title, by virtue of deeds duly acknowledged and recorded, have claimed the premises and have erected lasting and valuable improvements thereon, with the knowledge of, and without interference by, the plaintiff or his predecessors in title.

To this the plaintiff replied, denying that defendant was owner in fee simple, and all allegations of the answer which deny the absolute -ownership in the plaintiff and deny the adverse title and possession in the defendant and her predecessors.

With the pleadings in this situation, the ease went to trial to the -court and Jury, resulting in a verdict and judgment for Hawley. By proper proceedings "in error the case is here for review.

A bill of exceptions is filed here containing all the proceedings •on the trial, including the evidence, the rulings of the court on the admission of evidence, and the charge of the court to the jury.

It will lie seen that the plaintiff was put to the proof of his title, •as he must recover, if at all, upon the strength of his title and not upon •the weakness of the title of her who was in possession.

To prove his title, the plaintiff introduced records of deeds, showing that at one time one D. W. Babcock had a deed of certain real estate, including the lands here in dispute and other lands which the plaintiff now owns immediately adjoining the same on the east, and also lands immediately to the west of the disputed land, which last-named land is now owned by Heller, the land in dispute being a strip five feet in width fronting on Harrison street, now in the city of Cleveland, and extend'ng back seventy-two and one-half feet from said street, so that Hawley is the undisputed owner of the land bounding on the east and Heller is the undisputed owner of the land bounding on the west of the ■disputed land. Hawley thus having shown such deed in Babcock, ■showed by proper record that Babcock conveyed by warranty deed a tract including the disputed tract and the lands on the east thereof in ' 1864, and that through various mesne conveyances the record title which Babcock had is now in Hawley. The plaintiff then offered in evidence record of deeds, beginning with a deed from Babcock in 1866 and showing by this and by mesne conveyances that the record title which L. E. Holden, from whom Heller says in her answer she received her deed and who put her into possession, did not include the land in dispute, but only the land immediately on the west of it, and then the deed from Holden to Heller, executed less than twenty-one years before Hawley brought suit to recover possession, the deed from Holden including the disputed tract. All of this evidence tending to trace the title of Heller back to Babcock was objected to by Heller, but was admitted over such objection. Proper exception was taken by Heller, and it is now urged by plaintiff in error that there was error in the introduction of such evidence.

The defendant in error insists that it was properly admitted and that by it he was relieved in making proof of his own title from tracing the title back of Babcock.. It is not contended by counsel for Hawley but that he must, to make his case, trace title under which he claims back to the government or to one in possession from whom he or one of his predecessors obtained title, or to one under whom both parties claim title. This rule is well stated in Middleton v. Westerney, 4 Circ. Dec. 650 (7 R. 393), the second clause of the syllabus of which reads:

“Where the title of the plaintiff is denied by the answer of the defendant, and possession of the land claimed is, by force of the statute, thereby admitted by the defendant, to entitle the plaintiff to recover, he must show a better title to the land in controversy than that of the defendant. A prima facie case is made by his showing a conveyance to him or one of his grantors in his chain of title, by one then in the possession and occupancy of the land in question. If this is not done,, he must run his title by deed or other necessary proof, to some one-shown or admitted to be the common source of title, to him and the defendant and in default of there being such common source of title, back to the government. And on his failure to offer evidence tending to do either, it is not error in the trial court to withdraw the evidence from the jury and render a judgment for the defendant.”

See, also, the opinion of Judge Ranney in Blake v. Davis, 20 Ohio 231, 239, in which this language is used, speaking of the plaintiff in an ejectment case:

“Neither he nor those under whom he claims ever having had possession of this land, it was incumbent upon him to show a connected paper title from the government to sustain the action of ejectment.”

That it is sufficient in Ohio that the plaintiff in ejectment show a better title than the defendant from one vendor whom both claim, is well settled. In Hart v. Johnson, 6 Ohio 87, it is said:

“Where both parties’ claim to title is based on a common origin, neither can go behind the person from whom they hold or show that his claim is not good.”

In Newell, Ejectment 585, note 4, it is said:

“Where both parties claim title from the same grantor it is sufficient to establish a prima facie case to prove derivation of title from the common grantor without proving his title.”

In Doe v. Dugan, 8 Ohio 87 [31 Am. Dec. 432], it is said:

“Where the source of title is common to both parties, in ejectment, neither is at liberty to contest it.”

If, then, in this case, both parties were claiming title through or under Babcock, the plaintiff was relieved from the necessity of going back of Babcock.

The claim of Hawley is, that by her answer Heller set up title under deed from H'olden, and that, therefore, she must defend on Holden’s title.

It is true she pleads a deed from Holden and that she took possession under him, and that this possession of him under whom Holden claimed, and the possession of Holden and her own possession constitute a continuous adverse possession against the plaintiff for more than thirty-five years, Hut she nowhere asserts that either Holden or any predecessor of his had a good title, but only that they claimed title. All title passed out of Babcock to the lands now owned by either thA plaintiff or defendant more than thirty-five years ago. Heller does not in her answer assert a good title in anyone but herself, and she says that this title is founded upon adverse possession.

The evidence under discussion sought to force upon her a claim of title coming originally from Babcock.

The evidence properly admissible under these pleadings is exactly what it would have been if Heller had simply denied the plaintiff’s title. See Kyser v. Cannon, 29 Ohio St. 359; Rhodes v. Gunn, 35 Ohio St. 387. From what has been said, it follows that there was error in the admission of the records showing title by mesne conveyances from Babcock to Heller.

Complaint is made of the charge of the court in the use of the following language:

“By the claim of adverse possession the defendant and her predecessors must have been in open, notorious, continuous, adverse and undisputed possession of the land for twenty-one years in order that she may have the right thereto. ’ ’

We hold that the word “undisputed” should not have been used. The fact that the plaintiff or any,other owner “disputed” the defendant’s right to occupy would not of itself interfere with the running of the statute of limitations.. The requisites of adverse possession are, that it be, as stated by Judge Follett, in the opinion in Dietrick v. Noel, 42 Ohio St. 18, 21 [51 Am. Rep. 788], “actual, open, continuous, hostile and exclusive.”

See, also, McAllister v. Hartzell, 60 Ohio St. 69 [53 N. E. Rep. 715], and 1 Cyc. of Law & Procedure 981, where it is said that the possession must be “actual, visible, exclusive, hostile and continued during the time necessary to create a bar under a statute of limitations. ’ ’

The court further charged:

“The burden is upon her to prove the facts necessary to sustain such plea” — of adverse possession — “and to be available must be clearly proved by the greater weight of the evidence and not left to mere conjecture. ”

Again, the court, after saying what constituted adverse possession, says:

“If the defendant has clearly proven this by the greater weight of the evidence, then your finding should be in her favor.”

We think the word “clearly,” as used in these two paragraphs, was calculated to , mislead the jury as to the amount of evidence required of the defendant.

There was no question, under the evidence, that the defendant occupied, possessed and claimed to own a building, a part of which was upon land which she unquestionably owned and which extended over upon and.covered the disputed tract; that the possession, as it now is, of the defendant is such that if this building stands now where it has stood for more than twenty-one years, covering just the same land and no more than it has covered during all that period, then the defense of adverse possession is sustained, and, so far as the length of time that the building has occupied its present position, it was sufficient that the defendant establish it by a preponderancé of the- evidence. We are not prepared to say that the court so far erred in the use of the word “clearly” as would justify a reversal on that account, though the charge would have been better without it.

It follows from what has been said relative to the admission of evidence, that there was error in the charge of the court, that if plaintiff and defendant held from a common source of title, “then the defendant would be estopped from denying title thus derived from a common source,” because, with the evidence excluded which we hold should be excluded, there was no evidence to which this part of the charge could apply.;

It follows, too, that the court should have charged in substance ■as he was asked to do by the defendant in her third request, that,

“If the plaintiff has not derived his chain of title to the land in dispute by a chain of conveyances from the government, or from a grantor proved to have been in possession of the land in dispute when he executed the conveyance therefor, your v„erdiet should be for the •defendant. ’ ’

We find no errors in the record justifying a reversal of the judgment, except such as are pointed out in this opinion, and for the errors so pointed out and for no other, the judgment is reversed and the case remanded to the court of common pleas.

Winch and Henry, JJ„ concur.  