Daily Development for Wednesday , November 26, 2003 by: Patrick A. Randolph, Jr. Elmer F. Pierson Professor of Law UMKC School of Law Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu ADVERSE POSSESSION; REQUIREMENT OF CONTINUITY: An adverse possession is not "continuous" if the true owner successfully defends the adverse possesssor's claim in a lawsuit, even if the adverse possessor in fact never leaves and later sues again. Hughes v. Insley, No. 00558 (Md. App. 10/7/03) The facts and issues here are very complex, and a lot must be said for background. Be patient - we'll get to the issue stated in the caption. For over thirty years, an adverse possessor made extensive unpermitted use of a 186 acre tract owned by another. His activities included farming, hunting, logging, and various other open acts, and openly and he notoriously excluded others.. Then he died in 1992, apparently intestate, survived by his wife and son. The adverse possessor's son, Toady, had been in occupancy of the land in the same way as his father, but he had not engaged in adverse possession activities for the necessary twenty year period prior to 1992. The record owner then made a claim to the land through a quiet title action and an action for injunction, naming as defendants the adverse possessor's wife and son. The wife, Lottie, defended on the grounds that she was the successor to the adverse possessor as a tenant by the entireties. The adverse possessor's son, a co-defendant in the quiet title action, claimed that he was an adverse possessor in his own right, since he could tack onto his father's adverse possession and, since his father's death, and even before, had carried on basically the same sort of activities. During the pendency of the lawsuit, Lottie executed a deed to Toady and Toady then claimed that he was a successive adverse possessor in privity with his father and (later) his mother. The trial court heard this action in 1998, and concluded that Lottie was not a tenant by the entireties in the adversely possessed estate of her husband simply by being his wife. Neither the adverse possessor husband nor anyone else had purported to convey the parcel to the wife prior to the lawsuit. Taking up the case in 1998, the trial court ruled that the adverse possessor's wife did not become a tenancy be entireties in his land simply by being married to him. There had never been any formal act creating that estate. She did, it is true, become the probably heir to his property upon his death, but as of 1998 there had been no probate of the estate. So lottie had no title to the disputed parcel. This her deed conveyed nothing to her son. Without a valid deed from an owner, the son could not demonstrate privity with his father. Simply being a member of an adverse possessor's household does not establish the privity necessary for adverse possession. On the basis of this analysis, the trial court denied the counterclaims of both Lottie and Toady for quiet title in their names. But the judge also refused to quiet title in favor of the plaintiff record owner, since an element of quiet title is peaceable undisturbed possession for over thirty years, and for the preceding period, the facts made clear, there had been no such possession by the record owner, since Toady's father had been occupying the land as an adverse possessor. As thje court points out in the current appeal, this left the property in a state of limbo. Toady continued in possession, but had no title. The true owner may have had title, but no way to quiet it in her favor. Trying again, the true owner, in 2000, resorted to an alternate form of action - ejectment. He argued that neither Toady not Lottie had been able to establish adverse possession, and that therefore they were trespassers. This time, however, Lottie and Toady were better prepared. They showed that, after the last suit, Lottie had had herself appointed personal representative of her husband's estate. In that capacity she had deeded the property to her sole heir - she herself. Then he later deed to Toady gave him the necessary privity relationship to his predecessor father. The defendants Lottie and Toady again counterclaimed. The trial court ruled that the owners were precluded from prevailing in their action due to res judicata - since they should have raised the ejectment claim in the first action. But that similarly the counterclaimants were barred from asserting their title by a species of res judicata, since the failed to appeal from the first ruling and the court founnd against them on their adverse possession claim. All enough to warm the hearts and minds of Property professors everywhere. Everyone appealed. The court dealt first with Toady, who claimed that, whatever the shortcomings in the first adverse possession case, he now had adverse possession since he'd been continuing to use the property since before the prior trial, and the twenty years had not run. The court rejected this argument. It concluded that the true owner's action in merely filing an action to quiet title did not interrupt Toady's possession, the true owner's later resistance to Toady's efforts to counterclaim for quieting title in himself did constitute a possessory act. But even though Toady could not establish adverse possession in his own right, the appeals court held that res judicata did not prevent him from showing that he was a successor to his father's adverse possession through the deed from the estate to his mother. By process of after acquired title, when his mother got valid deed from the state, this confirmed the validity of the prior deed from her to her son. The appeals court reversed the trial court's conclusion that Toady was barred from making his claim of adverse possession in the second suit by "issue preclusion," a species of adverse possession. New facts had arisen in the form of the deed from father's estate to Lottie. This made Lottie a legal owner and validated Toady's claims. The court chose to ignore the fact that Lottie could easily have taken these steps during the pendency of the first action and didn't do so.. Whether or not the lower court was correct in dismissing the second action (in ejectment) by the true owner was, in the view of the court, an irrelevancy once it decided that Toady owned the property by virtue of the father's adverse possession. Comment 1: A very complex case, but one that an experienced title lawyer will find interesting. Note, in particular, the court's statement of what it takes to interrupt an adverse possession. The court first says that the record owner's act of bringing the lawsuit to quiet title, with an ancillary action for injunction against trespass, was not sufficient to constitute an interruption. The authority that it cites for that proposition does not appear to support that conclusion at all. But perhaps what the court is saying is that the bringing of such a lawsuit does not serve to interrupt that possession if, as here, the lawsuit was unsuccessful. That makes more sense. The next thing that the court says is that the answer to the counterclaim of adverse possession was sufficient to interrupt the adverse possession. Again, however, maybe the court is saying that such answer is sufficient if the adverse possessor's suite fails, as it did in the first action. Comment 2: In the second case, above, note that the successful response to the adverse possessor's suit appears to be enough, even when the adverse possessor, having lost the suit, nevertheless goes merrily on his way in continuing the adverse possession. This possession must satisfy a new statutory period. The court quotes from an earlier edition of Thompson on Real Property to the effect that if a owner prevails in a case based upon adverse possession, the owner's right to possession is restored, and the fact that the owner elects not to take possession does not mean that the adverse possessor's continued possession have not been interrupted. The adverse possessor's time must start over. Readers are encouraged to respond to or criticize this posting. Items reported on DIRT and in the ABA publications related to it are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. 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