79 Neb. 39 | Neb. | 1907
This is either an action to quiet title or for the specific performance of a contract. It is difficult to determine which.' Plaintiff relies upon title by adverse possession, and seems to have been supported in this claim by the trial court, although there ivas a general finding for the plaintiff. Plaintiff is an heir at law, and the grantee of all other heirs at law, of John Lanham, deceased, who died "in 1900, while occupying the land in controversy. The petition alleges that in 1880 Lanham and the defendant entered into a verbal contract, whereby the defendant agreed to exchange the land in controversy for $1,100 to be credited by Lanham upon his account books, and paid for in building material and rent; that Lanham thereupon took possession of the property and held the same by adverse possession until his death; and that said Lanham performed his part of the agreement by crediting the amount of the purchase price to defendant and furnishing rent and materials. Plaintiff further alleged that, when said
The evidence clearly established that plaintiff’s ancestor took possession of the property in controversy under a verbal agreement with defendant, and that he and his heirs have been in continuous occupancy from 1880 until the present time. In its inception, therefore, the occupancy of Lanham was not adverse, and the evidence fails to show that it ever became adverse by the demanding of a deed and a refusal' by defendant, or otherwise. Lanham’s possession under the contract could not be adverse to defendant, and, until his occupancy in some way assumed an adverse character, the statute did not begin to run. Lanham’s title was subservient to the title held by his grantor, the defendant, and that condition is presumed to continue until the presumption is overcome by competent evidence. In Beer v. Plant, 1 Neb. (Unof.) 372, this court held: “In order to establish title by adverse possession, it is not sufficient to show continued occupancy for ten years, but it must also appear that such occupancy was with intent to claim title against the true owner.” In Smith v. Hitchcock, 38 Neb. 104, it is said: “Where possession of real estate is the result of an entry upon the premises by permission of the legal owner, such possession will not become adverse until some act is committed by the occupant rendering it so, and notice thereof is brought home to the owner of the legal title.” We are convinced that under the evidence in this case plaintiff cannot recover on the ground of adverse possession.
In the second amended petition, plaintiff’s allegations are inconsistent. He attempts to plead title by contract and also by adverse possession, without alleging that the contract had been fully performed on his part more than ten years before the commencement of the action, and that defendant had notice that the plaintiff during that period was claiming to hold the land adversely. The court erred in permitting two causes of action, to stand in the second
The evidence wholly fails to prove the, material allegations of the petition, and we recommend that the judgment of the district court be reversed and the'cause remanded for a new trial.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for a new trial.
Reversed.