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is in the United States, against whom the statute of limitations does not run, and the issue of the patent does not cause the plaintiff's legal title to relate back to the date of the certificate. Redfield v. Parks, 132 U. S. QUE; 10 S. Ct. Rep. 83 (1890).

§ 15. Adverse Possession and Prescription.-A title to an incorporeal hereditament, or an easement, may be acquired, it is said, by prescription, or in other words, by an adverse user for the period required by the statute of limitations, and so the title to lands may be acquired by adverse possession. In this connection the term prescription signifies the manner of acquiring property, both corporeal and incorporeal, by an honest and uninterrupted use and enjoyment of the same for the period required by law. When the period has elapsed, the law raises the presumption of a grant in both cases, and denies to the original proprietor his remedy because he has allowed the period to elapse without asserting it.' The rules of law in relation to the acquirement of incorporeal property and rights may be less rigorous than those relating to the acquirement of lands, but it is not necessary to discuss them here.

§ 16. The Doctrine of Presumption of Grants.-In relation to the doctrine as to these presumptions, it is said there is no difference in the doctrine, whether the grant relate to corporeal or incorporeal hereditaments. A grant of land may as well be presumed, as a grant of a fishery, or of a common, or of a way. Presumptions of this nature are adopted from the general infirmity of human nature, the difficulty of preserving muniments of title, and the public policy of supporting long and uninterrupted possessions. They are founded upon the consideration that the facts are such as could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to, or an admission of an existing adverse title in, the party in possession; they may, therefore, be encountered and rebutted by contrary presumptions, and can never fairly arise where all the circumstances are perfectly consistent with the non-existence of a grant. A fortiori, they

'Bouvier's Law Dictionary, Titles, Vinson, 32 Tex. 128; Jones v. Jones, Adverse Possession and Prescription; 18 Ala. 253; Davis v. McArthur, 78 see also Humbert v. Trinity Church, N. C. 357; Melvin v. Waddell, 75 24 Wend. (N. Y.) 614; Winthrop v. N. C. 361; Elder v. Bradley, 2 Sneed Auburn, 31 Me. 465; Crispen v. Han- (Tenn.), 253; McElmoyle v. Cohen, 13 navan, 50 Mo. 550; Sailor v. Hert- Pet. 312; Bledso v. Little, 5 Miss. 24. zogg, 2 Penn. St. 182; Kinney v.

OCCUPANT MAY HOLD ADVERSELY.

713

can not arise where the claim is of such a nature as is at variance with the supposition of a grant. In general, it is the policy of courts of law, to limit the presumption of grants to periods analogous to those of the statute of limitations, in cases where the statute does not apply. But where the statute applies, it constitutes, ordinarily, a sufficient title or defense, independently of any presumption of a grant, and, therefore, it is not generally resorted to. But if the circumstances of the case justify it, a presumption of a grant may as well be made in the one case as in the other; and where the other circumstances are very cogent and full, there is no absolute bar against the presumption of a grant, within a period short of the statute of limitations.'

§ 17. An Occupant May Hold Adversely as to Some and Not as to Others.-A person occupying lands adversely, may admit that he does not hold them so as against certain persons, and such admission will not estop him from holding adversely

as to others."

Land was conveyed in 1854 in trust for a mother and her two children. On the death of the latter, their interests descended to three half-sisters and a daughter of a half-brother. The defendant is the husband of one of the half-sisters. In 1866, the mother deeded her interest to him, and the trustee conveyed him the legal title, both deeds being in trust for his wife and children. Since then he has held possession of the land. The complainants are the children of another of the half-sisters. The defendant held a power of attorney from her to transact her business in the State from the time he took possession until her death in 1867. In 1873, he bought the interests of the other half-sisters and that of the half-brother's daughter. Held, that during the life of the complainants' mother, the defendant's possession was not adverse to her. Day v. Davis, 64 Miss. 253; 8 So. Rep. 201 (1890). Possession held in subordination to the title of the United States may be adverse as to another claimant. Francoeur v. Newhouse, 43 Fed. Rep. 236 (1890).

$18. Possession Can Not Be Adverse as to Persons Having no Present Right of Entry. The person against whom an estate is claimed to be held in adverse possession must have an immediate right of entry or the possession as to him will not be adverse. For example, the estate of a tenant for life may be acquired by an adverse possession for the period required by the statute because the tenant has the right of

1 Story, J., in Ricard v. Williams, 7 Wheat. (U. S.) 110 (1822).

Portis v. Hill, 14 Tex. 69; 65 Am. Dec. 99; 1 Am. & Eng. Ency. 276.

entry.' But while the estate is held and acquired as against the tenant the possession is not adverse as to the remainderman because, during the life estate, he has no right of entry. After the life estate is determined, however, the possession may become adverse as to the remainder-man, because he then has the right to bring his action for the recovery of the possession of the premises.'

19. It Does Not Run Against a Reversion or Remainderman, When, etc.-Statutes of limitation do not run against remainder-men or reversioners, during the continuance of the particular estate. These statutes are aimed at those who may be guilty of laches in omitting to enter or bring actions. Such laches and omissions can not be imputed to remainder-men or reversioners because they have no right in law either to enter into possession or bring an action. And this is true whether the particular estate exists at the time of the disseizin or when the adverse possession begins, or arises subsequently, provided, however, that in the latter case it is immediately preceded by a disability or disabilities within the proviso of the statutes.*

Illustrations.

As against a remainder-man: After defendant had held adverse possession, for the statutory period, of certain lands, the life tenant on whose estate plaintiff's remainder was limited executed to plaintiff a deed of all her interest in the land. Held, that the adverse possession had not only barred the remedy of the life tenant, but vested her estate in defendant, and therefore, the life tenant being still alive, plaintiff could not recover. Affirming 3 N. Y. S. 570. Baker v. Oakwood, 123 N. Y. 16; 25 N. E. Rep. 312 (1890).

Adverse possession commencing after the death of testator, whose will creates a remainder dependent on a life estate, will not bar an action by the remainder-men, commenced within the statutory period after the termination of the life estate. Bleidorn v. Pilot Mountain Coal & Min. Co. (Tenn.), 15 S. W. Rep. 737; Am. Dig. 1891, 43, 44.

One who holds land under a tenant for life acquires no title by prescription, as against those entitled in remainder, if they bring suit within seven

1 Moore v. Luce, 29 Pa. St. 260. Henderson v. Griffin, 5 Pet. (U. S.) 151; Bradstreet v. Huntington, 5 Pet. (U. S.) 402: Cheseldine v. Brewer, 4 H. & McH. (Md.) 487; Hall v. Vandergrift, 3 Binn. (Pa.) 374; Christie v. Gage, 71 N. Y. 189; Jackson v. Schoonmaker, 4 Johns. (N. Y.) 390.

Jackson v. Johnson, 5 Cow. (N. Y.)

74; Higgins v. Crosby, 40 Ill. 260; Woodson v. Smith, 1 Head (Tenn.), 276: Bailey v. Woodbury, 50 Vt. 166; Bell v. McCauley, 29 Ga. 355; Foster v. Marshall, 22 N. H. 491; Gibson v. Jayne, 37 Miss. 164; Fogal v. Pirro, 10 Bosw. 100; 17 Abb. Pr. 22.

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years after the death of the tenant for life. Bagley v. Kennedy, 81 Ga. 721; 8 S. E. Rep. 742 (1889).

The title of a life tenant of land in the adverse possession of another, claiming the fee under a foreclosure sale, for the period required by the statute of limitations to bar an action therefor, during all which time the life tenant was under no disability, vests in the person in possession, and the life tenant has, after that time, no interest subject to grant. Baker v. Oakwood, 49 Hun, 416; 123 N. Y. 16; 3 N. Y. Sup. 570 (1839).

A daughter whose possession of her father's land was taken with his consent can not gain title thereby through the statute of limitations, as against the other heirs of the father. Shaw v. Schoonover, 130 Ill. 448; 22 N. E. Rep. 589 (1890).

One who enters under a deed, which he supposes conveys a fee, but which in fact only gives him an estate for the life of another, on the death of such other becomes the reversioner's tenant by sufferance, and can not set up the claim of adverse possession under the deed against the reversioner's grantee. Learned v. Tallmadge, 26 Barb. (N. Y.) 443.

After the daughter's death, her children had no right of entry or of action for the land until the death of the husband, and the termination of his estate by the curtesy, and before that time the statute of limitations did not run against them, and laches was not imputable to them; and, by platting a town on the land, the husband and his grantees could convey no greater interest than he possessed, and the possession of the streets by the corporation during his life was not adverse to the rights of the heirs. Orthwein v. Thomas, 127 Ill. 554; 21 N. E. Rep. 430 (1889).

Where the widow of a decedent holds lands belonging to his estate in trust for his heirs, and occupies the land solely by virtue of her marital rights, her possession is not adverse to the heirs so as to give title by limitation; especially where she has disavowed any other than a dower right. Clayton v. Clayton's Ex'r (Ky.), 12 S. W. Rep. 312; Am. Dig. 51.

The possession of grantees of a tenant for life is not, during the life of the grantor, adverse as against the reversioner, within the purview of the statute of limitations. Rohn v. Harris, 130 Ill. 525; 22 N. E. Rep. 587.

The possession of a vendee of a life tenant is not adverse to that of the reversioner during the life of the tenant for life, and until his death such possession is not sufficient to set the statute of limitations in motion, though such vendee claims to own the land in fee. Mettler v. Miller, 129 Ill. 630; 22 N. E. Rep. 529 (1890).

The fact that the married woman's act of Illinois, in 1861, removed all disabilities of the reversioner, did not set the statute of limitations in motion from that time. Mettler v. Miller, 129 Ill. 630; 22 N. E. Rep. 529 (1890).

20. Adverse Possession as a Defense in Actions of Ejectment-Burden of Proof.—Where the defendant in possession of the premises for the recovery of the possession of which the action is brought, relies upon the statute of limitations as a defense, the burden of proof is upon him to show that his possession has been intentionally adverse, hostile, open and ex

clusive during the full period required by the statute immediately preceding the commencement of the action.'

21. Discussion of the Question of Adverse Possession as a Defense.-In testing the defense of adverse possession, the courts direct their attention to the time during which it has continued, and its character, its notoriety, the nature of the occupation, and the intention with which it was begun and continued. If it be a naked possession, not accompanied with any claim of right, it must fail as a defense, for it can never constitute a bar, but must, under the law, inure to the advantage of the real owner as a possession in his right and for his benefit. The law presumes, till the contrary is shown, that a man in possession without title is holding for the true owner; and that he intends to hold honestly so far as he can consistently with holding at all. It is a general rule of law that every possession of land has the presumption of right in its favor, but this presumption may be overcome by proof; but, until it is overcome, the possession is adverse to any other claimant. The presumption which

the law raises in favor of the actual occupant may be destroyed by showing that his possession has been interrupted, as, for example, by proof of his having received a lease, or evidence of his having paid rent, or acknowledged in some other way the title of the real owner, or it may be destroyed by showing that the defendant entered upon the lands in controversy without pretending to any claim or right whatever; in which case the possession is in subservience to the legal owner. Hence a claim of right is necessary, not because the statute always requires it, but because the want of such claim is evidence sufficient to destroy the legal presumption of right. The real intention with which a possession is taken or held, is the true test of its character. To be adverse it must be shown to have been hostile in its inception, or that, having been begun in consistency with the rightful title, its character has changed; but adequate cause must be shown for the change. Where it commences under an acknowledgment of the title of the rightful owner, the possession will retain such quality through any succession of occupants of the land, and will be presumed to be in subservience to the rightful owner. The

1 Village, etc., v. Reed, 21 Neb. 261; 31 N. W. Rep. 797 (1887).

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