75 Neb. 830 | Neb. | 1906
This action was brought to quiet plaintiff’s title to 80 acres of land. In October, 1876, the land was sold at private sale for delinquent taxes by the treasurer of Washington county and purchased by the defendant Daniel McPherson. A treasurer’s deed was issued to him in October, 1878, and on the same day he caused the deed to he recorded in the office of the .county clerk. It is conceded that the tax deed is void upon its face, for the reason that it does not have the seal of the treasurer impressed thereon. At the time of purchasing this land at tax sale the plaintiff and defendant were husband and wife, and living together on a four acre tract adjoining the land in controversy. In 1887 a public road was established separating the tract upon which the parties lived from the premises in dispute. McPherson took possession of the-land at the time of his purchase at the tax sale, and thereafter continued to use and occupy the same for farming purposes, raising crops thereon until January 14, 1884, when he caused a conveyance by quitclaim deed to be made through a third party to his wife, the plaintiff herein, the expressed consideration in the deed being $500. On February 24, 1886, the defendant procured a conveyance by quitclaim deed from the parties holding the patent title to said land, and this conveyance he kept from record until June 16, 1894. From January 14, 1884, the date of the conveyance to his wife, until June 16, 1894, the plaintiff and defendant continued to live together as husband and wife on the four acre tract above mentioned, and the 80 acres in question were worked and farmed by the defendant with the knowledge of the plaintiff, and the
From the foregoing statement it will be seen that the defendant’s conveyance to his wife Avas made something more than seven years after his purchase of the land at tax sale, and more than five years after the receipt and recording of his tax deed, and that during this time he was in the actual possession of the land, claiming to own the same. While his tax deed was void, it conferred color of title under which a continued uninterrupted possession for ten years from the date of his entry thereunder would give him good title by prescription. His tax deed, also, under our statute relating to occupying claimants, pro
The rule is well established that to interrupt the possession an action must be commenced against the claimant by the true OAvner, or a reentry on the premises made by him. To interrupt the possession by reentry by the OAvner, the intention to take possession must be sufficiently indicated by Avords or acts, by express declaration, or by exercise of acts of ownership inconsistent with a subordinate character. 1 Cyc. p. 1,010. As stated in Burrows v. Gallup, 32 Conn. 493, 87 Am. Dec. 186, the OAvner may tread upon his OAvn soil and still be as much out of possession of it there as elsewhere. In other words, the reentry must be in hostility to the possession of the claimant. The party from Avhom the defendant acquired the patent- title could interrupt the plaintiff’s possession only by suit commenced for that purpose or by a reentry into the premises under a. claim of title. Had he become a boarder in the plaintiff’s family, and lived with her upon the premises for any length of time, without manifesting his intention of claiming possession in his own right, the possession of the plaintiff Avould not be thereby interrupted, and we are at a loss to see how by his deed of conveyance to the defendant he could confer on him any greater right than he himself possessed. For eight years after acquiring the patent title the defendant kept the deed from record, and made no claim to the land; at least, he gave the plaintiff no reason to believe that he asserted a claim as against the title and rights which he had conveyed to her. It is true that he was in possession with her, but as long as he asserted no possession in himself and claimed m> title to the premises, it must be conclusively
We recommend a reArersal of the decree appealed. from, and that the cause be remanded, with directions to the district court to enter a decree in favor of the plaintiff.
By the Court: For the reasons stated in the foregoing opinion, the decree appealed from is reversed and the cause remanded, with directions to the district court to enter a decree in favor of the plaintiff.
Reversed.