Summary
In Badger v. Holmes, 6 Gray 118, [ 72 Mass. 118] the court said: 'Nothing is better settled than the rule, that the mere occupation of premises owned in common, by one of the tenants in common, does not entitle his co-tenant to call him to account, or render him in any way liable to an action for the use and occupation of the estate.
Summary of this case from Fundaburk v. CodyOpinion
No. 33325-2-II.
May 23, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-2-07790-2, Lisa R. Worswick, J., entered June 2, 2005.
Counsel for Appellant(s), David D. Gordon, Gordon Misner, 7525 Pioneer Way Ste 101, PO Box 1189, Gig Harbor, WA 98335-3189.
Counsel for Respondent(s), Thomas L. Dickson, Dickson Steinmacker LLP, 1201 Pacific Ave Ste 1401, Tacoma, WA 98402-4322.
Kevin Terry Steinacker, Dickson Steinacker LLP, 1201 Pacific Ave Ste 1401, Tacoma, WA 98402-4322
Reversed by unpublished opinion per Quinn-Brintnall, C.J., concurred in by Hunt and Van Deren, JJ.
D. Holmes Enterprises, Inc. and Gordon Misner (collectively `Holmes') appeal a superior court order quieting title to certain real property in George and Teresita Badger. We agree with Holmes that although the Badgers obtained the disputed property through adverse possession, they subsequently executed a deed of trust on land, including the disputed property, which the trustee later foreclosed. We reverse and remand.
FACTS
The Badgers began living on Lot 24 in 1983. At that time, their lot was separated by a fence from Lot 23, which borders Lot 24 to the west. The fence encroached onto Lot 23 by 20 feet. Since 1983, the Badgers have continuously maintained the fence and the 20-foot strip through landscaping and gardening. The Badgers obtained fee simple title to Lot 24 in 1986.
In 1994 and 1995, the Badgers executed a purchase and sale agreement and obtained fee simple title to Lot 23. Then, in 2000, the Badgers secured a loan with a deed of trust on Lot 23. Specifically, the deed of trust encumbered their interest in `[a]ll of the property located at [Lot 23 address], in which the Borrower has an ownership, leasehold or other legal interest.' Clerk's Papers (CP) at 16. The deed of trust `more particularly described' the property as `LOT 23 IN BLOCK 7 OF STANSBERRY LAKE THIRD ADDITION, ACCORDING TO PLAT RECORDED IN . . . PIERCE COUNTY, WASHINGTON.' CP at 16, 24. The recorded plat described Lots 23 and 24 by metes and bounds.
The trustee of the deed of trust instituted foreclosure proceedings in 2003. Holmes's predecessor in interest purchased Lot 23 at a foreclosure sale later that year. Holmes obtained title thereafter.
Arguing adverse possession, the Badgers filed suit and moved to quiet title in the 20-foot strip. In response, Holmes maintained that foreclosure of the deed of trust to Lot 23 terminated the Badgers' interest in the strip. The superior court rejected Holmes's argument and quieted title to the 20-foot strip in the Badgers.
This appeal followed.
ANALYSIS
A party seeking to obtain title to property by adverse possession must prove that his possession of the property was open and notorious, actual and uninterrupted, exclusive, hostile, and continuous for the statutorily prescribed period of 10 years. RCW 4.16.020(1); Chaplin v. Sanders, 100 Wn.2d 853, 857, 676 P.2d 431 (1984). It is undisputed that the Badgers obtained original title to the 20-foot strip by adverse possession in 1993. The sole issue here is whether the deed of trust included the Badgers' thus-acquired title to the strip. We agree with Holmes that it did.
`[T]itle acquired by adverse possession is not affected by the recording statutes.' Crescent Harbor Water Co. v. Lyseng, 51 Wn. App. 337, 345, 753 P.2d 555 (1988).
When real property has been held by adverse possession for 10 years, such possession ripens into an original title. Title so acquired by the adverse possessor cannot be divested by acts other than those required where title was acquired by deed. The person so acquiring this title can convey it to another party without having had title quieted in him prior to the conveyance.
El Cerrito, Inc. v. Ryndak, 60 Wn.2d 847, 855, 376 P.2d 528 (1962) (citation omitted); see also 10 Thompson on Real Property, Second Thomas Edition sec. 87.03, at 92 (Daniel A. Thomas ed. 1995) (`The cases are in accord that when adverse possession is completed, title passes from the former owner to the adverse possessor.'); id. sec. 87.01, at 76 (Title by adverse possession `is a new and independent title by operation of law and is not in privity with any former title.').
Once the Badgers satisfied the requirements of adverse possession, they held title to the 20-foot strip and were free to convey or encumber that interest. They did this with the deed of trust. The deed of trust encumbered their interest in Lot 23 that was specifically defined by metes and bounds to include the 20-foot strip the Badgers had earlier acquired by adverse possession. The manner by which the Badgers acquired their interest in the 20-foot strip, as well as the fact that their deeded interest was the product of two separate legal titles, is irrelevant. The Badgers' deed of trust included their interest in the strip that they acquired through adverse possession as well as their interest in the remainder of Lot 23 that they purchased.
Holmes does not argue that the Badgers' adverse possession of the property ceased when they purchased Lot 23 in 1995. See Ryndak, 60 Wn.2d at 855 (`Once a person has title (which was acquired by him or his predecessor by adverse possession), the 10-year statute of limitations does not require that the property be continuously held in an adverse manner up to the time his title is quieted in a lawsuit.'). It is worth noting that had the Badgers not satisfied the elements of adverse possession by the time of the purchase, the purchase would have destroyed the element of hostility. Thompson, supra sec. 87.14, at 172.
The Badgers' interest in the entirety of Lot 23 ceased when the deed of trust was foreclosed. We reverse the superior court order quieting title to the strip in the Badgers and remand for further proceedings consistent with this opinion.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and VAN DEREN, J., concur.