It was the theory of the defense that the plaintiff never had any title to the one-third of the lot claimed by the defendant; that the defendants had acquired the title by adverse possession; and that they were not bound by the judgment in Wolf v. Baldwin .
The judgment-roll in Roper v. Wolf was clearly admissible as evidence of the defendant's possession five years after the date of his deed, May 9th, 1862.
A contest was made as to whether Roper ever was in possession before 1867, and if so, whether it was continued till August, when he moved on his house, which was immediately torn down, or whether Wolf entered in March, 1867, which was less than five years from Roper'salleged entry. Plaintiff contended that Baldwin was in possession of this lot in controversy when the suit of Wolf v. Baldwin was brought, and that Roper never was in possession until he put his house on the easterly one-third of the lot; and defendants contended that Roper was in possession prior to bringing that suit, (May, 1862) and continued in possession until he was finally ousted, (August 2nd, 1867) when his house was torn down; and that he was therefore in uninterrupted possession for more than five years. So the question really was, was Roper ever in possession? After the house was torn down, there is no pretense on either side that Roper was in possession till he was put there by the Sheriff under the writ in the forcible-entry suit. The witnesses on both sides so testify. Then, of course, the question was narrowed down to the issue as presented by the pleadings in the forcible-entry suit--Was he in possession on August 2nd, 1867, or, if you please, at any other time, till the suit was brought? or was he ousted in March. 1867, less than five years from Roper's entry?
The defendant claimed that he took possession in 1862, by building a substantial fence around theeasterly one-third of the lot in controversy, so that the important fact for the defendant to establish was that the defendant had the fence separating his portion from the other portions of the lot, during the whole five years. If he did not, then he had no actual possession. One of the witnesses for the plaintiff testified that " from the year 1867 to this time, there has been no fence in the middle of that fifty-vara lot, or through it." If this was true, Roper did not have a five years' adverse possession; and had no actual possession from March, 1867, till March, 1870, and could not possibly have recovered in the forcible-entry suit, which was commenced July 23rd, 1868, and the forcible entry must have been within one year revious to that time; so it could not have been earlier than July 23rd, 1867, and the record in the forcible-entry case was all-important to establish that fact, inasmuch as there was a conflict of the evidence. Baldwin, in his answer in Wolf v. Baldwin, only claims possession of the westerly two-thirds of the fifty-vara lot.
Thus the Court will see that it was material--in order to show Roper's five years' adverse possession, inasmuchas there was a conflict of the evidence--that this judgment-roll in the forcible-entry suit should be introduced. It certainly established a possession in Roper as late as the time of the alleged forcible entry, which was nearly one year before the forcible-entry suit was brought. If it established an actual possession in him later, even till the time the suit was brought, it could do no harm. It certainly established that, at some time within one year before that suit was brought, Roper had the actual possession. If the forcible entry had been made in March, 1867, as plaintiff contended, then Roper could not have recovered. If it was in August, 1867, as defendants contended, then he could have recovered in that action. Plaintiff's and defendant's witnesses are both agreed that after the forcible entry Roper did not gain possession again until March, 1870.
Hence, we say, the evidence was material to fix the character and date of Roper's possession.
OPINION By the Court:
There certainly was evidence tending to show that defendant was in the adverse possession continuously of the premises in controversy, for more than five years from May, 1862. The judgment-roll in the forcible-entry case was admissible, as tending to show that such adverse possession continued at least until July, 1867.
Appeal from judgment dismissed, and order denying new trial affirmed. Remittitur forthwith.