[171] The acquisitive prescription plea of ten years, in my opinion, should be sustained. Indisputably Calder's possession through Wisdom Johnson occurred prior to December 30, 1916, the date on which the Central Savings Bank Trust Company secured the abstract of title (disclosing the outstanding interest) and became in legal bad faith. If the possession commenced before the divestiture of Calder's title by the sheriff's sale, it is conceded by the majority that the plea of prescription is well founded. If it occurred thereafter, on the other hand, the presumption is that Calder possessed for his vendee (the bank), and such presumption, since there is no evidence to overcome it, is controlling and must be given effect.
[172] I respectfully dissent.
[173] HAWTHORNE, Justice (dissenting).
[174] The majority opinion has concluded that James L. Anding, Sr., was in legal bad faith at the time he acquired the property on January 4, 1919. I have serious doubt as to the correctness of this conclusion, but, assuming it to be correct, I am still, as I have been from the beginning, of the opinion that the 10 years' prescription acquirendi causa, based on the sale to Calder on May 31, 1912, is well founded and should have been sustained, and plaintiffs' suit dismissed.
[175] This case has been argued in this court three times. After each of the first two arguments, a sufficient number of the six members of the court participating in this case could not agree so that an opinion and decree could be rendered, and it has been only since the third and final argument that the majority has concluded to remand the case so that additional evidence may be adduced as to the date and the nature of the possession of George Calder and Wisdom Johnson, who possessed the property as Calder's tenant.
[176] The possession of these parties was not an issue in the lower court, nor was it an issue during the first two arguments in this court. This is clearly shown by plaintiffs' original brief, pages 75 and 76, filed in this court on April 24, 1948, from which I quote:
[177] "Under these circumstances, Anding was not a purchaser in good faith and so the deed to him by Phillips cannot serve as the basis of the prescription of ten years acquirendi causa; nor could Mr. Anding tack on, or use, the possession of earliervendors in his chain of title because he was not, himself, a purchaser in good faith. Ten years had not yet accrued from the time of the purchase by Calder to the time of the sale to Anding, so there is no need to discuss the earlier possession andtitles." (Italics mine.)
[178] On the other hand, defendants from the inception of the case have urged that the plea of 10 years' acquisitive prescription was well founded, based not only on the acquisition of the Central Savings Bank Trust Company and Anding, Sr., but also on the acquisition of George Calder. Notwithstanding this plea of prescription, which squarely raised the issue of possession, the nature and date of the possession of Calder and Johnson were not questioned by plaintiffs until now. This, in my opinion, clearly shows that this issue was raised as an afterthought. Until this time, plaintiffs pitched their entire case on the bad faith of Anding, Sr., and the illegality of the tax sale to Anding, Jr., and their position was tantamount to conceding, and correctly so, that George Calder's possession was sufficient to start the running of the 10-year acquisitive prescription, under the established facts, but that Anding, Sr., could not acquire thereunder because he was in bad faith.
[179] I have been of the opinion from the first argument of this case that Calder had the necessary possession to begin the acquisitive prescription of 10 years. The fact is established conclusively and beyond any question that Wisdom Johnson went on the property for Calder as his tenant and farmed the property for him for one year. Because the witnesses after some 30 years could not state definitely when the Dexter family was evicted and Wisdom Johnson went on the property (but all of them who testified on the point testified that it was either 1914 or 1915), the majority of the court entertains enough doubt of Calder's possession, and of whether Johnson went on the property while Calder was the owner, to imagine numerous possibilities as to the character of his possession, which in turn raise infinite problems of precarious possession, presumptions, and counter-presumptions, and finally to remand the case with a myriad of instructions to the trial judge as to the proof that can be offered, the regulation of the order of the proof, and the effect of it. This part of the opinion is a scholarly treatise on the subject of precarious possession, but none of it, in my opinion, is necessary for a decision in this particular case. Furthermore, in my opinion the record itself shows that remanding the case is a vain and useless thing. The events on which further evidence is to be taken occurred more than 30 years ago; the record in this case, besides the numerous exhibits, already fills seven volumes, and the fact of Calder's possession has been fully explored.
[180] Is the fact that the witnesses were indefinite on the question of the exact time of Wisdom Johnson's tenancy actually as important and decisive as the majority of the court has concluded? I am of the opinion that it is not. In the first place, as set out above, the witnesses were testifying as to matters that occurred some 30 years before. That they should be indefinite, or even contradict one another on the point after such a long time, is not unusual, but the assumptions that the majority of the court has made from this are most unusual.
[181] To reach the decision in this case the majority has made the unreasonable assumption that Calder might have arbitrarily sent in his own tenant after the bank foreclosed on him without any understanding with the bank as to the matter — and, further, that the bank could have managed its affairs so poorly that it would have allowed the persons on the property at the time of the foreclosure (the Dexters) to remain four months after the foreclosure (from August to December of 1915) and then would have permitted the former owner, Calder, to send in his tenant, Wisdom Johnson, to possess openly and notoriously for him, and adversely to the bank. By these assumptions and views the majority completely loses sight of the real issues in this case, and even who are the parties to this suit. This is not a contest between any of the vendors and vendees in Anding's chain of title; this suit is an attack on the whole chain of title by a third person. There is not one inference, suggestion, or hint in the entire record that any of the vendors in the chain ever had the remotest idea of possessing adversely to his vendee.
[182] I am not unmindful of the rule that he who urges prescription must prove it. If there were any doubt in this record that there was actual, physical possession of the land or that such possession was for Calder, the contention that the pleaders of prescription had failed in their proof would be valid, but the record establishes conclusively that there was actual possession — farming of the land by Wisdom Johnson — and that it was for Calder, as Calder's tenant. Certainly, under these circumstances, if any presumption is to be indulged in here, it should be the presumption that Calder sent his tenant on the property while he was owner. Presumptions are reasonable conclusions or natural inferences drawn from certain proven facts. It is the natural thing that a man would lease property and send a tenant on it while he is the owner; to do so when he is not the owner is an unusual and unnatural act. Since the record does not show that the unnatural act was proven so that the presumption would be overcome, I am of the opinion that the necessary possession was established, and that the plea of prescription of 10 years acquirendi causa should be sustained.
[183] I respectfully dissent.