Campbell v. Campbell

13 N.H. 483 | Superior Court of New Hampshire | 1843

Gilchrist, J.

The demandant and tenant are sons of David Campbell, the younger, and grandsons of David Campbell, the elder. Upon the death of the first David Campbell, his son inherited one undivided tenth part of the farm. The demandant, as one of his children, would be entitled to one eighth only of this tenth part, unless his father, David Campbell, the younger, after the death of the first David Campbell acquired a title to the whole farm upon the facts found by this case, in which event the demandant would be entitled to one eighth part of the premises.

The demandant alleges that his father acquired a title to the farm by an adverse possession for more than twenty years. But there is no evidence in the case of an adverse possession. The occupation of the father was unaccompanied by any of the circumstances which constitute such a title. When David Campbell, the elder, died, his son was a minor, and remained upon the farm with his brother and sisters. His possession was rightful as to one undivided tenth part, and his possession and cultivation of the residue must be considered as having commenced with their assent. He made no claim to the whole farm, either then, or at any subsequent period. He must, therefore, be presumed to have continued his possession with their assent; for the evidence of an adverse possession must be construed strictly, and every presumption is to be made in favor of the true owner. Riley vs. Jameson, 3 N. H. Rep. 26; Hale vs. Glidden, 10 N. H. Rep. 402; Lund vs. Parker, 3 N. H. Rep. 491. A possession by consent of the owner is not adverse possession. Atherton vs. Johnson, 2 N. H. Rep. 31. The case shows only that the father of these parties was once in possession of the farm in common with the other heirs. His sisters married and went away, leaving him there. What became of his brother and mother does not appear. He made no claim of title, asserted no right to the exclusive possession, but carried on the farm as he had done before ; and no evidence is offered to rebut the presumption that he remained there with the assent of those interested. The demandant has failed to prove that his father attempted in any way to deprive the lawful owners of the farm of that to which they were justly entitled. The verdict must be set aside, and there must be a

Neto trial.