67 Minn. 362 | Minn. | 1897
Ejectment. The plaintiff claimed under record title from the United States. The defendant claimed title by adverse possession.
In support of his claim plaintiff introduced in evidence (1) a certified copy of an approved list of lands granted to the state by the act of July á, 1866,
The assignments of error based on the alleged insufficiency of the evidence cannot be considered. While the judge certifies that the case contains all the evidence, yet the case itself shows that it does not. A certain plat or map of the land was introduced, which is not in the record. Much of the testimony of the witnesses as to the topography of the land, and the parts of it which defendant or his father broke up and put under cultivation at different times, was given with reference to this map, and is wholly unintelligible without it. Acker Post v. Carver, 23 Minn. 567; Larson v. Northern Pac. R. Co., 33 Minn. 20, 21 N. W. 836.
There is; however, one error presented by the record on account
The court, doubtless, had in mind the proposition that, if the statute had already run, so as to toll plaintiff’s title, and vest title in the defendant, no subsequent recognition of plaintiff’s title, except by deed or other instrument sufficient to pass an estate or interest in land, would devest defendant’s title. This is, doubtless, true. It is only a recognition of the owner’s title while the occupant’s rights are inchoate, and before the statute has ran in his favor, that will break the continuity of an adverse possession. Wood, Lim. § 270; Sailor v. Hertzogg, 2 Pa. St. 182. There are a few authorities to the contrary, holding that an acknowledgment of the former owner’s title after the statute has run has the same effect as an acknowledgment of a debt barred by statute. Cook v. Long, 27 Ga. 280; Long v. Young, 28 Ga. 130. But they fail to distinguish between a case where the statute merely bars the remedy, and a case where it extinguishes the right of property and vests title in the adverse holder.
But, while the acceptance of this lease would not devest defendant’s title if he had already acquired it, yet it was in the nature of an admission that he had no title, and was competent and very material evidence tending to show that he was not holding adversely to the party from whom he accepted the lease. To establish title by prescription, it was just as necessary for defendant to prove that his possession was adverse, — that is, with intent to claim and hold the land as against the plaintiff, — as it was to prove that it was continuous and exclusive. His occupancy might have been merely with intent to wait for the owner to sell, or until he was able to buy. The admission involved in the acceptance of the lease was competent evidence as to the character of his possession, whether made before or after the time the statute would have run, had the possession been adverse. The court ought to have submitted it to .the consideration of the jury under proper instructions. Baldwin v. Temple, 101 Cal. 396, 35 Pac. 1008. If the evidence had been conclusive that
Counsel have not raised or discussed the question whether the familiar doctrine that a tenant cannot dispute his landlord’s title has any application to the case, inasmuch as the defendant was already in possession. Therefore we have not considered the question.
Order reversed.
14 U. S. St. 87.