Ross v. Phillips

¹⁶⁷ Boxd, C. J., delivered the opinion of the Court. This case grows out of the same controversy as that just considered in the case of Pratt D. Phillips and others v. Jacob E. Taylor and Hannah A. Ross. It is an appeal by Mrs. Ross from a verdict and judgment against her by direction of the court, in her suit against Phillips & Brother for trespass in going upon the land in which she claims a half interest and cutting the timber from it under a: contract with Jacob E. Taylor alone. The evidence bearing on the whole controversy is to some extent divided between the records in the two cases; and there is in this record evidence that Taylor has for the last twenty-eight or twenty-nine years cut his firewood from this woodland tract, and has paid all taxes on it.

As a consequence of these facts, it was contended, Taylor acquired sole ownership by adverse possession even if Mrs. Eoss did inherit a one-half interest. We have already decided that the property was not included in the devise to Taylor in the will of Isabella Taylor, the mother; and the evidence seems to us insufficient to support the contention that Jacob E. Taylor has since acquired title by possession adverse to his sister’s ownership? Possession by one such co-tenant is, in contemplation of law, possession by the other also, and it is necessary to prove an actual ouster to rebut this presumption and establish adverse possession in the one. Israel v. Israel, 30 Md. 120, 125 ; Hammond v. Morrison, 33 Md. 95, 101; Hogan v. McMahon, 115 Md. 195, 200 ; Meyers v. Loan & Sav.

Assn., 139 Md. 607, 615 . Even though one tenant may have been in sole possession of the land and enjoyment of the profits for more than twenty years, this does not take away the other’s right unless he was actually put out, or his title in common uniformly denied. Lloyd v. Gordon, 2 H. & McH. 254 , 260. And while the ouster need not have been accompanied by positive force, it must have been actual, and be established by acts or declarations brought borne to the knowledge of the cotenant.

Van Bibber v. Frazier, 17 Md. 436, 451 . The burden of establishing it is on the party alleging the ouster. Van Bibber v. Frazier, supra. The cutting of fire wood testified to here was only occasional, ¹⁶⁸ and there is no reason to suppose it may have come to the notice of the sister; and no reason, we think, to hold that it was an act antagonistic to the sister’s joint rights.

And as to the payment of taxes by Taylor, while, as a rule, evidence of the fact is admissible in connection with evidence of acts of ouster, it is generally held that whatever obligations it may place upon the cotenant, it does not alone amount to ouster. Wilson v.