McPherson v. McPherson
| Decision Date | 22 February 1906 |
| Citation | 106 N.W. 991,75 Neb. 830 |
| Parties | MCPHERSON v. MCPHERSON ET AL. |
| Court | Nebraska Supreme Court |
The general rule is that the husband or wife cannot, while living together and in the joint possession of real estate, acquire title one against the other by prescription.
In such case both are presumed to occupy the premises in subordination to the title under which possession was taken, in whichever of the parties it may be, and not in hostility to such title.
A husband, while living with his wife, held possession of land, claiming title thereto through a tax deed which was void upon its face for want of a seal. Some years after taking possession he caused the same to be conveyed to his wife through a third party, his deed being a quitclaim and the parties thereafter jointly occupied the land. Some time prior to the running of the statute of limitations in favor of the wife, and the vesting of title in her by prescription, the husband bought in the patent title and thereafter for some years continued in possession of the premises with his wife, but did not record his deed or assert any title to the premises in hostility to the claim of his wife until the statute had run in her favor. Held, that his possession of the land with his wife after acquiring the patent title, without any act or declaration on his part that he was claiming possession under his deed, did not arrest the running of the statute in favor of the wife, and that she acquired title to the land through adverse possession thereof.
Commissioners' Opinion. Department No. 2. Appeal from District Court, Washington County; Lee S. Estelle, Judge.
Action by Adeline McPherson against Daniel McPherson and others. Judgment for defendants, and plaintiff appeals. Reversed.Jefferis & Howell, for appellant.
Herman Aye and F. A. Brogan, for appellees.
This action was brought to quiet plaintiff's title to 80 acres of land. In October, 1876, the land was sold at private sale for delinquent taxes by the treasurer of Washington county and purchased by the defendant Daniel McPherson. A treasurer's deed was issued to him in October, 1878, and on the same day he caused the deed to be recorded in the office of the county clerk. It is conceded that the tax deed is void upon its face, for the reason that it does not have the seal of the treasurer impressed thereon. At the time of purchasing this land at tax sale the plaintiff and defendant were husband and wife, and living together on a four acre tract adjoining the land in controversy. In 1887 a public road was established separating the tract upon which the parties lived from the premises in dispute. McPherson took possession of the land at the time of his purchase at the tax sale, and thereafter continued to use and occupy the same for farming purposes, raising crops thereon until January 14, 1884, when he caused a conveyance by quitclaim deed to be made through a third party to his wife, the plaintiff herein, the expressed consideration in the deed being $500. On February 24, 1886, the defendant procured a conveyance by quitclaim from the parties holding the patent title to said land, and this conveyance he kept from record until June 16, 1894. From January 14, 1884, the date of the conveyance to his wife, until June 16, 1894, the plaintiff and defendant continued to live together as husband and wife on the four acre tract above mentioned, and the 80 acres in question were worked and farmed by the defendant with the knowledge of the plaintiff, and the proceeds of said premises were used in the support of defendant McPherson and his family, including the plaintiff, without any specific contract or agreement being made as to the same; and from February 24, 1886, to June 16, 1894, the plaintiff had no knowledge of the deed from the owners of the patent title to the defendant. During all the time from January 14, 1884, until June 16, 1894, the plaintiff and defendant worked together as husband and wife for the mutual benefit and support of each other and family, and the premises in question constituted their only farm lands in connection with their home on the four acre tract, upon which they actually resided. From June 16, 1894, until the commencement of this action the defendant farmed said premises and asserted ownership thereof as against the plaintiff. For four or five years prior to the commencement of this suit the defendant McPherson has had the exclusive use and occupancy of said premises. From January 14, 1884, to February 24, 1886, the defendant never made any claim to said premises, and from February 24, 1886, to June 16, 1894, did not specifically, or in express terms, make any claim to the plaintiff that he was the owner thereof. The above facts all appear from an agreed statement of facts filed by the parties in the...
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