O'Boyle v. McHugh

• Decision Date: 07 December 1896
• Citation: 69 N.W. 37,66 Minn. 390
• Parties: O'BOYLE v MCHUGH ET AL.
• Court: Minnesota Supreme Court

66 Minn. 390

69 N.W. 37

O'BOYLEvMCHUGH ET AL.

Supreme Court of Minnesota.

Dec. 7, 1896.

(Syllabus by the Court.)

1.As between parties sustaining parental and filial relations, the possession of the land of the one by the other is presumed to be permissive, and not adverse.To make such possession adverse, there must be some open assertion of hostile title, other than mere possession, and knowledge thereof brought home to the owner of the land.

2.Evidence considered, and held that it justified and required a finding that the possession by the plaintiff of the land of the defendants who are her children, was permissive, and not adverse.

Appeal from district court, Goodhue county; W. C. Williston, Judge.

Action by Mary O'Boyle against Margaret McHugh and others.Judgment for defendants.From an order refusing a new trial, plaintiff appeals.Affirmed.

Albert Johnson, for appellant.

J. C. McClure, for respondents.

START, C. J.

This is an action to determine adverse claims to real estate, in which judgment was ordered for the defendants on the findings of fact by the trial court, and the plaintiff appeals from an order denying her motion for a new trial.It is undisputed that the plaintiff had been in possession of the premises in question more than 15 years next before the commencement of this action, during all which time the defendants held, and still do hold, the record legal title thereto.The plaintiff's sole claim of title is that of adverse possession.The trial court found and decided that the plaintiff never at any time entered into possession of the premises with intent to claim them adversely to the defendants; that her possession was permissive, and not adverse.The principal question raised by the plaintiff's assignments of error is that this finding of the court is not justified by the evidence.The evidence not only sustains the finding, but requires it.The admitted facts of the case are such that a finding that the plaintiff's possession was hostile and adverse as to the defendants would be so manifestly against the evidence as to justify a reversal.The relation of parent and child existed between the parties hereto during all the time the plaintiff claims to have been in adverse possession.This relation radically modifies the general rules of law as to what constitutes adverse possession between strangers.As between those sustaining parental and filial relations, the possession of the land of the one by the other is presumed to be permissive, and not adverse.To make such possession adverse, there must be some open assertion of hostile title, and knowledge thereof brought home to the owner of the land.1 Am. & Eng. Enc.Law (2d Ed.) 821;Burrus v. Meadors, 90 Ala. 140, 7 South. 469;Silva v. Wimpenney, 136 Mass. 253;Allen v. Allen, 58 Wis. 202, 16 N. W. 610.

The plaintiff on the 26th day of May, 1856, was the wife of Michael McHugh, and so continued to be until April 1, 1868, when he died intestate, leaving, him surviving, his widow, the plaintiff, and the defendants, their children, who are his sole heirs at law.On the day first named, Michael McHugh, with the plaintiff, as his wife, entered into possession of the premises in question, and became the owner thereof, under the preemption laws of the United States.He built a dwelling house, granary, stable, and other buildings on the land, and fenced and broke a portion thereof.He so continued to occupy it as a farm and home with the plaintiff and his family to the time of his death.December 12, 1866, he and the plaintiff executed a mortgage thereon, which was afterwards, and on July 24, 1874, foreclosed, and the premises sold to James Lawther.No redemption was made from the foreclosure sale, and December 1, 1877, Lawther conveyed the land to the defendants.On June 26, 1875, upon the petition of the plaintiff, 46 acres of the land was set off to her as dower by the probate court of the proper county.The plaintiff on the 26th day of January, 1875, married Owen O'Boyle, who has resided with her on the land, doing the farm work for...