
    Keas et al. v. Burns et al.
    
    Occupying claimant; possession must be adverse. To establish a ■right to pay for improvements under our occupying claimant law, it is essential that the possession under and during which the improvements are made, shall be adverse to the holder of the paramount title.
    
      Appeal from- Dubuque District Court.
    
    Wednesday, July 31.
    This is a controversy between the same parties, and growing ont of the same subject-matter (though with parties inverted and in another phase), as reported in, 21 ■ Iowa. While that case ivas pending in this court, or rather after it was decided in the court below, this case, to recover pay for improvements under the occupying claimant law, was brought, tried and determined in the District Court. The plaintiffs claim under Edward Keas ; the defendants under Margaret Keas.
    The District Court found the-facts, in substance as follows : Margaret owned the lot when she and Edward intermarried ; afterward Edward built the house — a' brick — worth twelve hundred1, dollars, with the understanding between them that he should be the owner of the house, and she the owner of the lot; they lived together on the property as their homestead for several years, and till her death, and he occupied it 'as such till his death, shortly afterward; that during their occupancy of the property, he paid the taxes, and no offer to repay them to him has ever been made; Edward also insured the house for his own benefit, and it being damaged by fire, he received the insurance money and repaired it; he “ never claimed to own the lot either by contract or otherwise, but claimed to be and was the owner of the house' built, by the understanding with his wife.”
    Upon this finding of facts, of which neither party complains, the District Court held that whatever might be the rights of the plaintiffs in equity, they have not established their right to recover under our occupying claimant law, and rendered judgment dismissing plaintiffs’ petition. The plaintiffs appeal. *
    
      John Doud, Monroe c§ Derry, and W. G. Hammond for the appellants.
    
      B. W. Poor for the appellees.
   Cole, J.

The District Court held correctly, and the judgment must be affirmed. The holding of the plaintiffs’ ancestor, Edward Keas, under whom they claim, was not adverse ’to, but was con- , ' . , sistent with, and recognizing the title of, his wife, Margaret Keas, under whom defendants claim. To establish, a right to pay for improvements under our occupying claimant law, it is essential that the possession under and during which the improvements are made, shall be adverse to the holder of the paramount title. Rev. §§ 2264-2276; Wiltse v. Hurley et al., 11 Iowa, 473; Parsons v. Moses, 16 Id. 440; Jones v. Graves, 21 Id. 474.

But, since the plaintiffs may have rights in equity under the contract between their ancestor and 1ns wife, Margaret, or otherwise (see Livingston v. Livingston, 2 Johns. Ch. 537), their petition in this case, which is strictly under the occupying claimant law and no more, will be dismissed without prejudice to their rights in a court of equity. With this express modification the judgment of the District Court will be

Affirmed.  