— The plaintiff brought this action to quiet title to certain real property of which he was in possession and which he claimed to own. The defendant Mildred C. Bustard denied the plaintiff’s right, and asserted ownership to the property. On the issues
Mrs. Bustard wаs the record owner of the property and, prior to the fall of 1909, had occupied it as a residence. From the latter part of the year 1909 until October, 1910, the property was vacant and unoccupied, Mrs. Bustard having mоved to Portland, where she resided continually up to the time of the trial of this action. The respondent claims titlе by deed from Mrs. Ella M. Buck, which was executed on May 29, 1920. In the fall of 1910, the property being vacant, Mrs. Buck went into possеssion of it and remained there until a short time before she sold and conveyed the same to the respondent. Thе respondent’s title rests upon adverse possession, claimed to have been open and notorious and under claim of right for more than ten years, or from the time that Mrs. Buck entered into the possession thereof.
In 1912, Mrs. Buck purchased certificates of delin.quency which were against the property and thereafter began'foreclosure of the same. As the result of such foreclosure, she received a deed dated February 20, 1915. For reasons which it is not necessary here to detail, the foreclosure proceeding was void and no rights are assеrted by the respondent from that source. If the respondent prevails, it must be by reason of the fact that title had bеen acquired by adverse possession for a period of ten years. It will be admitted that all the eléments of adverse possession are present and that the respondent is entitled to prevail, providing that Mrs. Buck, when she entered the property, entered under claim of right, and continued to occupy the same under a claim of right, рrior to the time that she received the deed as a result of the tax foreclosure.
“Q. Did he give you authority as her agent to movе into the house? A. He says, ‘Mrs. Buck, I cannot rent the place because there is no sewer there; there is no toilet; the city had condemned it.’ I said, ‘If I can fix that up with the city have I your permission?’ ‘Sure’, he said, ‘You have my permission.’ ”
Thеreafter, Mrs. Buck occupied the property, put it in a sanitary condition, made improvements upon it from time to time, and from the time that she acquired the tax certificates in 1912, paid the taxes and assessments which were levied against it. The complaint in the tax foreclosure proceeding was signed and verified by Mrs. Buck on the 29th day of March, 1913. The defendants named therein were Mrs. Bustard and the unknown owners if any. In the complaint it is recited that the defendаnts, one of whom was Mrs. Bustard,
If Mrs. Buck did not enter under claim of right, and did not assert a claim of right prior to the time of the verification of this complaint, the respondent’s title must fail. "When one enters into the possession of property thе title to which is in another, there is a presumption that such entry is in subordination to the title of the real owner, and it is neсessary that a hostile intent or a claim of right must be shown. O’Donnell v. McCool,
The evidence in this case will not sustain a finding that Mrs. Buck entered thе property in 1910 under a claim of right, or that she asserted a claim of right prior to the tax foreclosure prоceeding. The allegation in the complaint in the tax foreclosure to the effect that Mrs. Bustard was the ownеr, which complaint, as above stated, was signed and verified by Mrs. Buck, is pursuasive evidence that, up to that time, she had not held the premises by a claim of title hostile to that of Mrs. Bustard. City of Cleveland v. Cleveland, C., C. & St. L. Ry. Co.,
The judgment will he reversed, and the cause remanded with directions to the superior court to enter a judgment as herein indicated.
Parker, C. J., Holcomb, Mackintosh, and Hovey, JJ., concur.