This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
That such an offer tends to prove that the possession is not adverse, see Liggett v. Morgan, 98 Mo. 39, 11 S. W. 241. Alsup v. Stewart, 194 111. 595, 88 Am. St. Rep. 169, 62 N. E. 795; Zweibel v. Myers, 69 Neb. 294,95 N. W. 597.
Chase from the rightful owner, should not, it is conceived, any more than should his offer to purchase, be considered conclusive of his recognition of the hitter's title, but there are occasional decisions in which it has been apparently so regarded.41 The language of the contract may of course show such recognition.42
If the person in wrongful possession actually takes a conveyance from the true owner, he will ordinarily base his claim upon such conveyance rather than upon the statute of limitations, but it may occur that the conveyance is invalid, or that it covers only part of the property. The language of the conveyance may no doubt be such as to show a recognition of the grantor's title,43 but apart from this, it seems that the wrongful possessor's acceptance of a conveyance, while it may be evidence of his recognition of the grantor's title,44 is not conclusive thereof.45
- Effect of taking lease. The taking of a lease from the true owner would almost necessarily, it seem-. involve a recognition of the latter's title, since the lease cannot well be regarded as acquired merely to protect the lessee from an unfounded claim by the owner.46 That it does interrupt the running of the statute has been decided in a number of cases.47 A mere offer to take a lease would seem also to be strong evidence of recognition of the other's title, even if not conclusive in that regard.48 But the taking of a lease of a tract adjoining the land of which the lessee is in wrongful possession cannot be regarded as involving a recognition of the lessor's title to the latter land, merely because he is the owner of both tracts.49
41. Olson v. Burk, 94 Minn. 456, 103 N. W. 335; Cluss v. Hackett, 127 Minn. 397, 149 N. W. 647; Texas, N. 0. R. Co. v. Speights, 94 Tex. 350, 60 S. W. 659.
42. Cahuac v. Cochrane, 41 Up. Can. Q. B. 437.
43. As in Ingersoll v. Lewis, 11 Pa. St. 212, 51 Am. Dec. 536.
44. Price v. Greer, 89 Ark. 300, 116 S. W. 676, 118 S. W. 1009.
45. Ripley v. Miller, 165 Mich. 47, 52, 130 N. W. 345, Ann. ('as. 1912C, 952; Bryant v. Prewitt, 132 Ky. 799, 117 S. W. 343; John L. Roper Lumber Co. v. Richmond Cedar Works, 168 N. C. 344, Ann. Cas. 1917B, 992, 84 S. E. 523;
Meyer v. Hope, 101 Wis. 123, 77 N. W. 720; Elder v. Mcclaskey, 70 Fed. 529, 17 C. C. A. 251. But that it necessarily interrupts the running of the statute, see Jackson v. Sears, 10 Johns. (N. Y.) 435.
That the acquistion of a tax title does not interrupt the running of the statute,see Hayes v. Martin, 46 Cal. 559; Mather v. Walsh, 107 M.v 121, 17 S. W. 755. Griffith v. Smith, 27 Neb. 47. 42 N. W. 749; Zweibel v Myer,69 Neb. 294, 95 N. W. 597;Bannon v. Brandon, 34 Pa. 263, 75. Am Doc. 655: Bilverstone v. Hanley, 55 Wash 458, 104 Pac. 767.
- Recognition of title in third person. Whether the recognition or admission by the person in possession, that the title is in a third person, operates to interrupt the running of the statute as against the true owner, appears to depend on whether it is to be conceded that a claim of title, or as otherwise expressed, possession hostile to the whole world, is necessary to the running of the statute. It is, it is submitted, not necessary,50 and consequently such recognition does not interrupt the running of the statute. Such recognition may, however, if it goes to the extent of an attornment to
46. But see Bidwell v. Evans, 156 Pa. 30, 26 Atl. 817.
47. Abbey Homestead Ass'n v. Willard, 48 Cal. 614; Chicago etc. P.. Co. v. Keegan, 185 111. 70, 56 N. E. 1088; Boling v. Ewing, 9 Dana (Ky.) 76; Campau v. Lafferty, 43 Mich. 429, 50 Mich. 114, 5 N. W. 648, 15 N. W. 40; Olson v. Burk, 94 Minn. 456, 103 N. W. 335; Hermann v. Mclver, 51 Tex. Civ. App. 270, 111 S. W. 766; Northern Pac. R. Co. v. George, 51 Wash. 303, 98 Pac. 1126. In Broad v. Beatty, 73 Ark. 106, 83 S. W. 339, it is decided that the acceptance of a void lease raises merely a rebuttable presumption of an acknowledgment of the lessor's title. It would rather seem, however, that the invalidity of the lease would ordinarily be immaterial in this regard.
48. Risher v. Madsen, 94 Neb. 72, 142 N. W. 700; Horton v. Davidson, 135 Pa. 186, 19 Atl. 934.
49. O'flaherty v. Mann, 196 111. 304, 63 N. E. 727; Rabberman v. Carroll, 207 111. 253, 69 N. E. 759; Tex v. Pflug, 24 Neb. 66, 8 Am. St Rep. 231, 39 N. W. 839; Levy v. Yerga, 25 Neb. 764, 13 Am. St. Rep. 525, 41 N. W. 773; Dixon v. Baty, L. R. 1 Exch. 259.
50. Ante. Sec. 503, note 47a. In Chicago & Alton R. Co. v. Keegan, 185 I11. 70, 56 N. E. 1088, it such third person as tenant, or an agreement to hold as agent of such person, have the result of making the possession thereafter enure to the benefit of such person rather than of the actual possessor.51
That the person in wrongful possession purchases, or offers to purchase, the claim of a third person to the land, has been decided not to affect the running of the statute as against the true owner.52 These decisions might be based upon the theory, either that the purchase did not involve any recognition of the title of the third person, or that the recognition of the title of a third person does not interrupt the running of the statute against the rightful owner.
If two persons have distinct interests in property which is in the adverse possession of another person, the fact that the latter purchases or otherwise acquires the interest of one of such two persons does not affect the running of the statute as against the other of such per sons.53 Accordingly the fact that the wrongful possessor purchases the interest of one tenant in common does not preclude him from asserting the statute as against the other tenants in common.54 Even were it conceded appears to be decided that if one in adverse possession makes a conveyance of the land to another, without however relinquishing possession, the continuity of the adverse possession is broken. This would seem to be upon the theory that recognition of the title as being in a third person interrupts the running of the statute.