Rosencrantz v. Shields, Inc.

Powers, J., delivered the opinion of the Court. In this case, brought to establish title to land by adverse possession, we are asked to determine the effect of prior litigation brought by the same plaintiffs, as adverse claimants in possession, against the same defendant, as holder of record title. Appellants here, plaintiffs below, are Ivor E. B. Rosencrantz and Shirley E. Rosencrantz, his wife. By deed dated 13 May 1964, they acquired title in fee as tenants by the entireties to two contiguous parcels of land in Frederick County, which together comprise approximately 0.952 acres.

Appellants’ grantor, Jesse N. Smith, purchased the com ³⁸¹ bined tract at a mortgage foreclosure sale, and took title by deed dated 13 February 1953. The appellee, Shields, Inc., defendant below, is the owner of record of the land adjacent on the north and west to that of appellants. Included in the Shields property is an area of about 0.361 acres which abuts the Rosencrantz land on the west. It is to this area that the opposing parties lay claim — the appellants by prescriptive title, and the appellee by record title.

On 20 May 1974, appellants filed in the Circuit Court for Frederick County a bill of complaint against Shields, Inc., to quiet title, establish boundary lines, and for further relief. It is apparent that the appellants timed the filing of their complaint so as to avoid the problem which had caused their failure in the prior litigation. In their complaint appellants described the land owned by them, and the land owned by Shields, including the parcel of 0.361 acres in dispute, alleged that possession of the disputed parcel by them and their predecessors in title “has been actual, open, continuous, notorious and hostile to the claims of others and under a claim of right” for more than 20 years. They claimed legal ownership by adverse possession.

In its answer, Shields denied appellants’ allegations of ownership by adverse possession and further asserted that the subject matter of the complaint was res judicata by reason of the decision of the court in Law No. 7201. An order signed by Judge Robert E. Clapp on 29 August 1974 referred to a pre-trial conference with counsel for the parties, and directed that the case be heard on 18 September on the issue of res judicata. We assume that the hearing was upon argument of counsel, and that no evidence was taken, because no transcript appears in the record. There followed, however, an 11 page memorandum on behalf of Shields, a 20 page memorandum for Mr. and Mrs. Rosencrantz, and a four page reply memorandum.

On 22 November 1974 Judge Clapp filed an opinion, in which he said: “This matter was the subject of a prior action at ³⁸² law brought by them [Mr. and Mrs. Rosencrantz] against the defendant [Shields, Inc.] on October 1, 1971, making a similar claim of title by adverse possession and alleging that the defendant broke and entered their property and was thus a trespasser. Judgment in this case went against the plaintiffs and the decision of this Court was on November 1, 1974 affirmed by the Court of Special Appeals. “The preceding law action was one of trespass to try title in which the plaintiff predicated his right of action upon a claim that the defendant illegally broke and entered his property. Thus, the plaintiffs have admitted an entry by the defendant and this entry, if the defendant is the true owner, was sufficient to interrupt the adverse claim of the plaintiffs and to end the previous adversary possession. Defendant’s title has now been established in the previous litigation, its entry was thus legal, and this terminated the continuity of plaintiffs’ previous possession.

See M.L.E., Adverse Possession, Sec. 54. The entire premise upon which the previous suit at law was tried, was the physical interruption and interference with the plaintiffs’ possession. “The nature of trespass to try title is set forth in Poe, Pleading (4th Ed.), para. 245, where it is stated at pages 224 and 225, ‘Sixth. Where the plaintiff claiming to have the paper title to the land, and by virtue thereof, claiming to be in possession, or claiming title by adversary possession, seeks to recover for a trespass alleged to have been committed by the defendant, who himself also claims title and possession under color and claim thereof, and who justifies his alleged trespass accordingly. Here the controversy will ³⁸³ be determined in favor of the party who is found to have the title; the possession in such case being dependent upon it’ (Emphasis supplied). “Under this rule it appears that the entry of the defendant upon the property was sufficient to break the continuity of plaintiffs’ possession and is thus conclusive of the plaintiffs’ claim in this case.” A decree dismissing the bill of complaint was signed and filed on 5 December 1974.

It is from that decree that this appeal was taken. The record in the prior action at law in trespass to try title was not, in any formal way, made a part of the record in the equity case now before us. It is obvious, however, that by mutual acquiescence the record in the prior case was considered as being fully before the court. In their brief in the present case the appellants say, in their Statement of Facts: “In August, 1971, surveyors hired by the Appellee appeared on the disputed tract and began taking measurements and placing markers.

The Appellants asserted their ownership of the land and the surveyors immediately left. “On October 1, 1971, the Appellants filed suit in Trespass, Quare Clausum Fregit, alleging adverse possession from 1951. The jury found for the Appellants, but the Circuit Court granted a judgment N.O.V., because of a failure to show a sufficient transfer of adverse possession to Jesse N. Smith from his predecessor (Mortgage foreclosure sale) in 1953. The Court of Special Appeals affirmed and Certiorari was denied on January 29, 1975. “On May 20, 1974, the Appellants filed the present suit. The Appellee had not attempted to gain possession, and had not entered the disputed tract at any time since the surveying incident of August, 1971.

No legal action or counterclaim was ³⁸⁴ filed by Appellee to obtain an adjudication of their title.” It was vital to the position of Mr. and Mrs. Rosencrantz in the prior trespass case, and in the present equity case, that they be able to prove continuous adverse possession for more than twenty years. That record title has always been in Shields and its predecessors is not questioned, nor is the location of any boundary line in dispute. The claim of Mr. and Mrs. Rosencrantz depends solely upon adverse possession. The rights of Shields are to be found in its unquestioned record title and whatever constructive possession flows from that record title.

In the prior trespass case it appears that Mr. and Mrs. Rosencrantz proved satisfactorily that they had possessed the disputed property adversely and continuously since they took title in May of 1964. They also proved satisfactorily that their predecessor in title, Jesse N. Smith, occupied the disputed area continuously and adversely at least from May of 1954 to some unspecified time in the latter part of 1963. The occupancy by Mr. Smith was through a tenant. In the court’s opinion which accompanied the order granting judgment n.o.v. for Shields in the trespass case, it was pointed out that there was doubt about the adverse occupancy by Smith between the time he took record title through the mortgage foreclosure sale in February of 1953 and the time his tenant went into possession in May, 1954.

Judge Clapp also pointed out the gap in the evidence of possession between the latter part of 1963, when Smith’s tenant terminated his possession, and May 1964, when Mr. and Mrs. Rosencrantz took title. The trial judge did not, however, find it necessary to determine whether those two periods constituted a break in the continuity of adverse possession. He held, correctly, that the adverse possession by Smith or his tenant could be tacked by Mr. and Mrs. Rosencrantz to their own adverse possession because there was evidence that when Smith sold the property to Mr. and Mrs. Rosencrantz he pointed out the boundaries to them on the ground as including the disputed area. A general rule applicable to tacking by successive owners ³⁸⁵ is stated in Sachs & Sons v. Ward, 182 Md. 385 , 35 A. 2d 161 (1943), where the Court of Appeals said, at 394-95: “* * * appellants’ only possibility of maintaining adverse possession would be by tacking on to their own use and occupancy that of their predecessors in title.

This is precisely what this court had already decided cannot be done, the rule being that possession cannot be tacked to make out title by prescription where the deed by which the last occupant claims title does not include the land in dispute.” (Citations omitted). An exception to that general rule, however, was held by the Court of Appeals to be well recognized in other jurisdictions and was applied as the law of Maryland in Freed v. Cloverlea Assn., 246 Md. 288 , 228 A. 2d 421 (1967). One of the authorities there cited which clearly expresses the exception was Ringstad v. Grannis, 171 F. 2d 170 (9th Cir. 1948), in which that Court said, at 174: “It is generally held that if, in connection with the conveyance of lands, there are circumstances showing an intent to transfer to the grantee the possession of other adjacent land occupied by the grantor and not covered by the deed, there is created such a privity that the grantee is permitted to tack the period of the grantor’s occupancy to his own in establishing title by adverse possession to the land not mentioned in the deed. ‘Where the deed is followed by the delivery of possession of the entire inclosure, it is sufficient evidence of a transfer of possession to raise the requisite privity between the parties.’ Rich v. Naffziger, 255 Ill. 98 , 99 N.E. 341, 343 .” The basis for the judgment n.o.v. in favor of Shields in the trespass case was that there was no evidence of privity as to the disputed area between Jesse N. Smith and his predecessors in the title which he obtained through a mortgage foreclosure, which meant that the earliest date from which Mr. and Mrs. Rosencrantz could claim adverse ³⁸⁶ possession was 13 February 1953 or, more likely, May, 1954, when Smith’s tenant went into possession. The trespass suit was filed by Mr. and Mrs. Rosencrantz on 1 October 1971, based on an alleged trespass by agents of Shields in August, 1971.

Both the date of the trespass and the date of filing of suit were less than twenty years from 13 February 1953. Therefore, the court held, the possession by Mr. and Mrs. Rosencrantz and their predecessor, Smith, even if adverse and uninterrupted, did not continue long enough to establish title. The bill of complaint initiating the present case was filed on 20 May 1974, more than twenty years from May, 1954, so that the only weaknesses as a matter of law in the position of Mr. and Mrs. Rosencrantz were the possible break in continuity of possession in 1963 and 1964, which we find it unnecessary to consider further, and the effect of the judgment against them in the trespass case. Although the hearing held in the trial court on 18 September 1974 was intended to be on the issue of res judicata as raised by Shields in its answer, and the actual hearing may have been so limited, the memorandum arguments thereafter submitted by the parties covered the whole field of continuity of possession.

In his opinion preceding dismissal of the bill of complaint, Judge Clapp properly recognized that res judicata was not the controlling legal principle. The outcome of the 1974 equity case did not turn solely on questions of what was or might have been decided in the prior trespass case between the same parties, but rather on the question of whether the adverse possession continued without interruption despite the first suit. As we have noted, the lower court held that the entry upon the disputed area by the agents of Shields [in August 1971], being lawful, terminated the continuity of the previous adverse possession. In this appeal both parties have correctly chosen to focus their arguments on the element of continuity, but they take somewhat divergent views of the determinative issue.

Appellants present this question: “Did the circuit court err by dismissing appellants’ ³⁸⁷ bill in equity on the ground that a trespass by agents of the appellee interrupted the continuity of the appellants’ adverse possession and tolled the statute of limitations?” The appellee poses the question this way: “Did the Circuit Court err by dismissing the Appellants’ Bill of Complaint in Equity on the grounds that the prior adjudicated law case effectively determined that the Appellee had possession of the land when it was determined to have the title?” There is little need to discuss the general legal principles that apply in cases of adverse possession. In Gore v. Hall, 206 Md. 485 , 112 A. 2d 675 (1955), the Court of Appeals stated the rule very succinctly when it said, at 490: “In order to establish title to land by adverse possession under the Statute of 21 James I, ch. 16, which is in force in Maryland, the claimant must show that such possession was actual, notorious, exclusive, hostile, under claim of title or ownership, and continuous or uninterrupted for the period of twenty years. 2 Alexander’s British Statutes, Coe’s Ed., 599-616; Peper v. Traeger, 152Md. 174, 181, 136 A. 537 ; Tamburo v. Miller, 203 Md. 329 , 100 A. 2d 818 .” In Goen v. Sansbury, 219 Md. 289 , 149 A. 2d 17 (1959), the Court said, at 295: “To establish adverse possession, a claimant must show that the possession was actual, open, notorious, exclusive and continuous or uninterrupted for the statutory period of twenty years. Bishop v. Stackus, 206 Md. 493, 498 ; Peper v. Traeger, 152 Md. 174, 181 .” Applicable statutory law, at the time of the entry upon the disputed area by the surveyors for Shields, and at the time ³⁸⁸ the trespass suit was filed, was found in Code, Article 57, Section 3A, which said, in part: “No person shall commence an action for the recovery of any corporeal estate in land, leasehold or freehold, or the possession thereof, or make any entry thereon, unless such action is commenced or entry made within twenty years after the right to commence such action or make such entry shall have first accrued to himself or to the person or persons under whom he claims * * *.” * 1 The court below held that the entry upon the disputed area by surveyors for Shields in August, 1971, broke the continuity of possession by Mr. and Mrs. Rosencrantz. We agree that the continuity of their possession was broken before it ripened into title, and that the bill of complaint in this case was properly dismissed, but we prefer to base that conclusion on a broader ground than the mere entry by the surveyors.

Meeting the basis of the lower court’s decision squarely, and with considerable persuasive effect, appellants argue that the entry of the surveyors for Shields upon the disputed area was not a sufficient entry to interrupt the continuity of their adverse possession. In Wickes v. Wickes, 98 Md. 307 , 56 A. 1017 (1904), the Court of Appeals, in holding