170 P. 940 | Mont. | 1918
Judge of the Seventh Judicial District, sitting in place of the Chief Justice, delivered the opinion of the court.
In this action the plaintiff seeks to recover the possession of lot 3 in block 359 of the town site of Great Falls, which lot plaintiff alleges the defendants possess and are wrongfully withholding from her.
The defendant Mary J. Thode answered, and denied each and every allegation in plaintiff’s complaint, and alleged as an affirmative defense that she has been in possession of the north 110 feet of said lot since April, 1902; that she has held the same openly, actually, notoriously, continuously, exclusively, adversely and uninterruptedly for that time, and has continuously used said premises as a home, residing thereon, and cultivated and improved the same; and that she claims the same as
The defendant Mary J. Thode then testified that she is a sister of the plaintiff; that she has occupied the north 110 feet of the lot in question since 1902, and has resided thereon continuously and exclusively, and has never shared the same with anyone else; that she has maintained her home thereon since April, 1902, and intends to continue; that she learned in 1902 that either the plaintiff or her husband owned the lot; that plaintiff’s husband owed the defendant money and would not pay it, and she determined to go on the lot in question for the purpose of holding possession of it against everybody, including Mr. and Mrs. Collins, and live on the lot for the purpose of getting title by adverse possession; that she had been advised at that time that she could obtain title by adverse possession; that she did not have anybody’s consent or permission to go on the lot; that since April, 1902, she has cultivated and improved the lot, by cutting the grass on the front and on the side, grown vegetables in the back of the lot, kept a hotbed, driveway and clothesline, and a house and barn upon the lot in question; that she cultivated the full 110 feet of such lot each and every year, except that portion upon which the house was located; that she raked up and burned the rubbish off of the full 110 feet of said lot twice a year; that the house has been upon the lot in question since 1902, and the bam was moved upon the same two years later; that the front part of the said lot was never fenced, but the other three sides were fenced, sometimes with one strand of wire and sometimes with two; that her possession of the land in question has not been interrupted since 1902; that her possession has been open and aboveboard, and has never been questioned until this action was instituted; that she did not know
The defendant Mary J. Thode was the only witness who testified in this case. At the conclusion of her testimony the court directed a verdict for the -plaintiff, and judgment was entered accordingly. This appeal is from that judgment.
Two questions are presented for determination, viz.:
(1) Did the court err in overruling defendant’s motion for a nonsuit?
1. It is admitted that the plaintiff obtained title to the
2. “Adverse possession, generally speaking, is a possession of another’s land, which, when accompanied by certain acts and circumstances, will vest title in the possessor. No matter in what jurisdiction the determination of what constitutes adverse
In 2 Corpus Juris, 75, it is said: “It is in general true that title by adverse possession cannot be acquired, unless the possession is open and notorious, but the rule must be understood with some qualification. A more correct statement of the rule is: In order to make good a claim of title by adverse holding, the true owner must have actual knowledge of the hostile claim, or the possession must be so open, visible, and notorious as to raise the presumption of notice to the world that the right of the true owner is invaded intentionally, and with a purpose to assert a claim of title adversely to his, or so patent that the owner could not be deceived, and such that if he remains in ignorance it is his own fault. ‘The claimant must exercise such acts of ownership and occupancy as are sufficient to “hoist his flag” over the lands, so that all may observe it.’ A clandestine entry or possession will not set the statute in motion, and mere declarations as to title in himself by the claimant, where the possession is not visible or actual, amount to nothing. The owner will not be condemned to lose his land because he has failed to sue for its recovery, when he had no notice that it was held or claimed adversely.”
Hostile possession is defined in 2 Corpus Juris, p. 122, as follows: “The term ‘hostile’ is used in the sense that the claimant must be in possession as owner, in contradistinction to holding in recognition of or in subordination to the true owner. Every possession is adverse which is not in subservience to the title of another, either by a direct acknowledgment or by an open or tacit disavowal of right on the part of the occupant, and it is in the latter case only that the law adjudges the possession of one to the benefit of another. The term ‘hostile,’ ‘when applied to the possession of an occupant of real estate holding adversely, is not to be construed as showing ill will, or that [the claimant] is an enemy of the person holding the legal title, but means an occupant who holds, and is in possession, as owner, and therefore against all other claimants of the land.’ ”
The defendant admits that she never asserted to anyone
When the defendant’s son had his house moved upon the
In this case, the rights of the answering defendant can be such only as would accrue if Henry E. Thode occupied the premises in question under authority of the owner. If she occupied the premises pursuant to permission of Henry E. Thode, such possession would be equivalent to permission from the owner of the premises, and subservient to the owner’s rights, and she could never acquire any right under such possession, greater than the rights of Henry E. Thode. Such possession could not be hostile to that of the owner of the premises.
In our opinion, the evidence offered by the defendant fails absolutely to show that she ever at any time had such possession of the premises in question as could ripen into title.
We find no error in this case. The judgment is affirmed.
Affirmed.