Collins v. Thode
| Decision Date | 02 February 1918 |
| Docket Number | 3857. |
| Citation | 170 P. 940,54 Mont. 405 |
| Parties | COLLINS v. THODE et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Cascade County; H. H. Ewing, Judge.
Action for possession of real estate by Lovinia A. Collins against Mary J. Thode and another. Judgment for plaintiff, and the named defendant appeals. Affirmed.
Stephen J. Cowley, of Great Falls, for appellant.
Cooper Stephenson & Hoover, of Great Falls, for respondent.
In this action the plaintiff seeks to recover the possession of lot 3 in block 359 of the town site of Great Falls, which lot plaintiff alleges the defendants possess and are wrongfully withholding from her. The defendant Mary J. Thode answered and denied each and every allegation in plaintiff's complaint, and alleged as an affirmative defense that she has been in possession of the north 110 feet of said lot since April, 1902; that she has held the same openly, actually notoriously, continuously, exclusively, adversely, and uninterruptedly for that time, and has continuously used said premises as a home, residing thereon, and cultivated and improved the same; and that she claims the same as her own adversely and hostile to the claim of the plaintiff or any person or persons whomsoever. Upon the trial of the case it was stipulated in open court that the title to the lot in question was in the Great Falls Town-Site Company until August, 1902, and was transferred to the plaintiff on the 19th day of August, 1902. The plaintiff then rested, and the defendant moved for a nonsuit, which was overruled.
The defendant Mary J. Thode then testified that she is a sister of the plaintiff; that she has occupied the north 110 feet of the lot in question since 1902, and has resided thereon continuously and exclusively, and has never shared the same with any one else; that she has maintained her home thereon since April, 1902, and intends to continue; that she learned in 1902 that either the plaintiff or her husband owned the lot; that plaintiff's husband owed the defendant money and would not pay it, and she determined to go on the lot in question for the purpose of holding possession of it against everybody, including Mr. and Mrs. Collins, and live on the lot for the purpose of getting title by adverse possession; that she had been advised at that time that she could obtain title by adverse possession; that she did not have anybody's consent or permission to go on the lot; that since April, 1902, she has cultivated and improved the lot, by cutting the grass on the front and on the side, grown vegetables in the back of the lot, kept a hotbed, driveway, and clothesline, and a house and barn upon the lot in question; that she cultivated the full 110 feet of such lot each and every year, except that portion upon which the house was located; that she raked up and burned the rubbish off of the full 110 feet of said lot twice a year; that the house has been upon the lot in question since 1902, and the barn was moved upon the same two years later; that the front part of the said lot was never fenced, but the other three sides were fenced, sometimes with one strand of wire and sometimes with two; that her possession of the land in question has not been interrupted since 1902; that her possession has been open and aboveboard, and has never been questioned until this action was instituted; that she did not know whether the lot in question was owned by Mr. or Mrs. Collins until after Mr. Collins' death; that she thought Mr. Collins would give her the north 110 feet of the lot before he died, for the reason that he owed her some money; that she always believed that he would either deed the lot to her, or will it to her, and was disappointed when he did not; that she never told any one of her claim to the lot; that she has lived upon the lot with her son, who is 40 years old; that previous to moving upon the lot she and her son resided in a house located upon other land, which house had been built by her son; that she had no income of her own, and her son provides the means for supplying the house; that the house was moved upon the land in question by a person employed and paid by her son; that she has never paid any taxes upon the land or the house in question, and if there were any taxes paid upon the house they were paid by her son; that the barn which was moved upon the premises belonged to her son; that she never "opened her head" to plaintiff, or gave her any intimation that she intended to claim the lot; that she had no talk with her about it, and never let the plaintiff know that she intended to claim the lot; that she did not know why she did not tell her about it; that she did not happen to say anything about it-"Why should I say anything to her?" that she never gave plaintiff any reason to suppose defendant intended to claim the lot, in any talk; that she never gave the plaintiff any reason to suspect that she had a secret intention to obtain the lot; that neither she nor her son ever paid any taxes on the lot; that she did not know who built the sidewalk in front of the lot, or who paid for it; that she never gave herself any concern about that.
The defendant Mary J. Thode was the only witness who testified in this case. At the conclusion of her testimony the court directed a verdict for the plaintiff, and judgment was entered accordingly. This appeal is from that judgment.
Two questions are presented for determination, viz: (1) Did the court err in overruling defendant's motion for a nonsuit? (2) Was the evidence offered by the defendant sufficient to show prima facie that the defendant had possession of the ground in question under such circumstances as would give her title by adverse possession?
1. It is admitted that the plaintiff obtained title to the ground in question on August 19, 1902. Section 6435, Revised Codes, provides:
"In every action for the...
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