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 .
- (j) Mortgagor and foreclosure purchaser.
There are decisions that the possession of the mortgagor is not adverse as against the purchaser at foreclosure sale,59 a view which appears to harmonize with the like view which has been taken with reference to the possession of a judgment debtor after sale under execution on the judgment.60
The possession of the purchaser under an invalid foreclosure sale being in effect that of an assignee of the mortgage,61 the right of redemption as against him will also ordinarily be barred after the statutory period.02
- (k) Surviving spouse and heirs. If, upon the death of a tenant in fee simple, his widow has. by the law of that jurisdiction, the right to hold possession of the land until the assignment of her dower, the statute of limitations cannot run in her favor as against the heirs or devisees, since they have no right of entry or action,63 and it is immaterial that they might, if they choose, have her dower assigned.64 And the case is the same after dower is assigned. She is in the position of a life tenant, and the statute cannot run during her life as against the reversioners or remainderman.65
59. Bosley v. Stewart, 140 Iowa, 101, 117 N. W. 1103; Els-worth v. Eslick, 91 Kan. 287, 137 Pac. 973; Cook v. Travis, 20 N. Y. 400; Neilson v. Grignon, 85 Wis. 550, 55 N. W. 890. Contra, Garren v. Fields, 131 Ala. 304, 30 So. 775.
60. Bradford v. Russell, 79 Ind. 64; Jones v.. Lickliter, 154 Ky. 848, 159 S. W. 652; Snowden v. Mckinney, 7 B. Mon. 258; Jackson v. Sternbergh, 1 Johns. Cas. 153; Swift v. Agnes, 33 Wis. 228.
61. Post Sec. 654.
62. Chickering v. Failes, 26 I11. 507; Jellison v. Halloran, 44 Minn. 199, 46 N. W. 332; Miner v. Beekman, 50 N. Y. 337; Hamm v. Mckenny, 73 Ore. 347, 144 Pac. 435; Houts v. Hoyne, 14 S. Dak. 176; West v. Middlesex Banking
Co., 33 S. D. 465, 146 N. W. 598. 63. Robinson v. Allison, 124 Ala. 325, 27 So. 461; Padgett v. Norman, 44 Ark. 490; Jarrett v. Jarrett, 113 Ark. 134, 167 S. W. 482; Riggs v. Girard, 133 111. 619. 24 N. E. 1031; Reuter v. Stuck-art, 181 111. 529, 54 N. E. 1014; Westmeyer v. Gallenkamp, 154 Mo. 28, 55 S. W. 231, 77 Am. St. Rep. 747; Meddis v. Kenney, 176 Mo. 200, 98 Am. St. Rep. 496; Wofford v. Martin, - Mo. - , 183 S. W. 603; Larson v. Anderson, 74 Neb. 361, 104 N. W. 925; Reed v. Hackney, 69 N. J. L. 27, 54 Atl. 229; Perkins v. Perkins,- Tex. Civ. App. - , 166 S. W. 915: Hulvey v. Hulvey, 92 Va. 182, 23 S. E. 233. See editorial note 14 Harvard Law Review, 149.
Even though the widow's possession is otherwise without right, it is, apparently, regarded prima facie as by permission of, or in behalf of, the heirs, and so not adverse to them,66 but it may become adverse by reason of her repudiation of the rights of the heirs.67
If a widow marries again, and the second husband lives with her on the land of her first husband, the possession, even if conceded to be in the second husband, is prima facie not adverse to the children of the first marriage, so as to cause the statute of limitations to run in his favor.68 He may, however, it has been decided, so assert a right of possession, under particular circumstances, that the statute will so run.69
64. See Foy v. Wellborn, 112 Ala. 160, 20 So. 604.
65. Neely v. Martin, 126 Ark. 1, 189 S. W. 182; Green v. Ellis. 145 Ga. 241, 88 S. E. 976; Swear-engin v. Stafford, - Mo. - , 188 S. W. 97; Graves v. Causey, 170 N. C. 175, 86 S. E. 1030; Cockrell v. Curtis, 83 Tex. 105, 18 S. W. 436.
66. Brlnkley v. Taylor, 111 Ark. 305, 163 S. W. 521; Sloss-sheffield Steel & Iron Co. v. Mc-cullough, 177 Ala. 272, 59 So. 658; Frazer v. Frazer, 1 Mete. (Ky.) 593; Moore v. Gulley, 30 Ky. L. Rep. 442, 98 S. W. 1011. (See Bush v. Fitzgeralds - Ky. - 125 S. W. 716); Shoultz v. Lee, 260 Mo. 719, 168 S. W. 1146; Reed v. Hackney, 69 N. J. L. 27, 54 Atl. 229; Larson v. Anderson, 74 Neb. 361, 104 N. W. 92:.; Hall v. Mathias, 4 Watts & S. 331. Contra.
Givens v. Ott, 222 Mo. 395, 121 S. W. 23.
67. Hays v. Lemoine, 156 Ala. 465, 47 So. 97; Brinkley v. Taylor, 111 Ark. 305, 163 S. W. 521; Hogan v. Kurtz, 1 Macarth. C.)135; Williams v. Thomas, 65 Iowa, 183, 21 N. W. 509; Munroe v. Wilson, 68 N. H. 580, 41 Atl. 240; Colgan v. Pellens, 48 N. .1. L. 27, 2 Atl. 633; Davis v. Dickson, 92 Pa. St. 365; Humplm v. Edwards, 89 Tex. 512, 36 S.w. 333.
68. Johnson v. Oldham, 126 Ala. 309, 28 So. 487, 85 Am. St. Rep. 30; Dewitt v. Shea, 203 ill. 923, 67 N. E. Till 96 Aim. Si. Rep. 311; Livingston v. Pendergast, 34 N. H. 544.
69. Munroe v. Wilson, 68 N. H. 580, 41 Atl. 240.
If, upon the death of a tenant in fee simple, her surviving husband has a life estate in the land, the statute cannot run in his favor as against the heirs or devisees, since they have no right of entry or action.70 If the surviving husband has no estate in the land, whether the statute of limitations will run in his favor depends on whether his possession is to be regarded as adverse to the heirs. There are decisions to the effect that it is prima fade adverse,71 and also decisions to the contrary.72
- (1) Parent and child. A child who is upon the land of his parent may be there, and frequently is there, as a licensee merely, in which case he is not in possession.73 And if he is in possession his possession is apt to be permissive merely, the possession of a tenant, and so not adverse to the parent.74 The child may, however, be in possession purely in his own right, and not as the licensee or tenant of the parent,75 as for instance when he holds under an oral gift,76 and in such case the statute will ordinarily run in his favor.
It has been judicially stated that the relationship of parent and child raises a presumption that the parent's possession of land belonging to the child is
70. Ante, Sec. 506.
71. Pattison v. Dryer, 98 Mich. 564, 57 N. W. 814; Norwood v. Totten, 166 N. C. 648, 82 S. E. 951.
72. Marshall v. Pierce, 12 N. H. 127; Jackson v. Cairns, 20 Johns. (N. Y.) 301.