164 Iowa 440 | Iowa | 1914
Andreas Gudmanson died intestate March 5, 1886, leaving him surviving his widow, Ragnild Gudmanson, and 'two children, Gudman Gudmanson and Mollie Nelson. The latter has since deceased, May 10, 1895, leaving four children, Anna Maria Sagán and Randina Nelson, the plaintiffs, and Peter Andrew and Mollie Nikkoline Nelson, minor defendants, and her husband, N. B. Nelson. The deceased, Andreas Gudmanson, owned eighty acres of land at the time of his death, five acres of which has been sold since, and on February 26, 1896, his widow conveyed all her interest in the premises to Gudman Gudmanson. In this suit the plaintiffs allege the children of Mollie Nelson are entitled to one-eighth thereof each, and Gudman Gudmanson one-half, and pray for partition and an accounting of rents and profits. The defendant, Peter Andrew Nelson, being a minor, answered by guardian ad litem, in demanding the relief sought in the peti
Upon the death of Andreas Gudmanson, title passed eo instante to his widow and two children, Mollie Nelson and Gudman Gudmanson. The widow did not elect to take the forty acres upon which she lived as a homestead, so that each became owner of an undivided one-third thereof and tenants in common, and, unless Mollie Nelson was divested of her estate prior to her death, her share descended to her surviving husband and children, the former taking one-third thereof, or one-ninth of the entire estate, and the latter one-ninth thereof, or one-eighteenth of the entire estate each. Was Mollie Nelson or those entitled to take under her ever divested of the title ?
Q. Well, how was the property divided at that time? A. There wasn’t anything else to divide, only some things in the hpuse and that outside, the cattle and such. My daughter Mary got nine head of cattle; they got some things from the house at this time and afterwards. Q. What did you get when the property was divided? A. I got two of the oldest cows and the team, and they were not divided because they thought they belonged to me. Q. Was there anything said about the land? A. No, not that I remember or heard anything about. Q. Did you ever divide the land? A. I did not divide it any other way, only I thought the 40 I was on was mine, and the other 40 they should have together, Mary and Gudman. Q. Upon what conditions, if any, should they have it? A. They agreed that they should have it together, and the one that could pay it should have it. Q. Well, who has paid for this land that was not paid at the time he died ? A. It is we that have paid it, Gudman. Q. Has Nick Nelson or his wife while she lived ever paid anything on this land? A. No.
Other evidence confirms her testimony that the division of the personal property had no connection with what may have been said concerning the realty. The defendant testified that in 1888 he and Nelson worked the farm together, and that “it was the understanding that we should work together and pay for it. We commenced the second year and worked
Many decisions are to the effect that the disseisin of co-tenants may not be inferred from exclusive and silent possession alone of a tenant in common, however long continued and that this will not constitute prima facie evidence thereof. Reed v. Bachman, 61 W. Va. 452 (57 S. E. 769, 123 Am. St. Rep. 996); cases collected in note to Joyce v. Dyer, 109 Am. St. Rep. 620. Expressions to the contrary are to be found in several of the decisions of this state, but these do not seem to have been necessary to the conclusions reached. The question is not specifically presented, and as its determination is not essential in this ease, we are inclined to pass it until fully argued, for in any event possession was not continued for such a length of time by Mrs. Gudmanson and defendant, nor under such circumstances, as that an ouster or disseisin should be inferred.
In Flock v. Wyatt, 49 Iowa, 466, exclusive possession for
In Chambers v. Bedell, 2 Watts & S. (Pa.) 225 (37 Am. Dec. 508), peaceable and exclusive enjoyment of land for fifty years was held to be sufficient to carry the issue as to ouster to the jury. For other cases, see annotation to 109 Am. St. Rep. 620. In North Carolina, from exclusive and peaceable possession for twenty years, ouster at the- original taking is inferred and title by adverse possession upheld in analogy to the statute of limitations barring title. Dobbins v. Dobbins, 141 N. C. 210 (53 S. E. 870, 10 L. R. A. (N. S.) 185, 115 Am. St. Rep. 682).
In order to warrant the presumption that there has been a disseisin of co-tenants, the taking of possession and holding
We discover no error in the record, and the decree is— Affirmed.