
    Crossman v. Foster et al.
    (Decided November 1, 1932.)
    
      
      Mr. W. G. Bishop, for plaintiff.
    
      Messrs. Davis, Ely $ Ely, for defendants.
   Hamilton, J.

The question here arose out of an action brought by plaintiff, Minnie M. Crossman, to partition certain real estate described in the petition.

The defendant, T. E. Foster, filed an answer, denying that plaintiff had any interest in the property, and claimed title to the property by adverse possession for more than twenty-one years, and further claimed the ownership by virtue of a tax title. Foster was unable to establish a tax title.

The evidence does, however, establish a clear title by adverse possession.

The property in question was a small lot which adjoined the property of Foster. It appears that as far back as 1876 Mary Ingle, the former owner of the property, resided on the lot. In 1890 she removed to Cincinnati, where she continued to live until 1908. She then went to California, where she remained for eleven years, returning to Middletown in the year 1918. She died in 1928. After her death, one of her sons, in 1931, made a quit-claim deed conveying his interest to the plaintiff.

The evidence discloses that the father of the defendant T. E. Foster had used the lot during his lifetime. In 1904 Foster took possession of the lot, took control of it, made lasting and valuable improvements thereon, paid the taxes, and occupied the property openly, notoriously, and adversely to the owner. Thus began the running of the statute of limitations, which has run continuously, and is not, as claimed by counsel for the plaintiff, interrupted by the fact that Mary Ingle was absent from the state between the years 1908 and 1918.

Foster had possession of the land uninterruptedly to the date of the filing of this action.

It is suggested in the brief of counsel for plaintiff that Foster one time, on inquiry of the husband of plaintiff concerning purchase of the property, stated that he (Foster) could not sell it, as it did not belong to him. It is urged that this is a declaration which would stop the running of the statute, as this would negative the idea of open, adverse possession. The husband of the plaintiff made some statement to that effect. It was denied by Foster. Had he made such statement to the husband of plaintiff it would not have been sufficient to stop the running of the statute, in view of the open and notorious possession and use of the property. Moreover, the statement, if made, was subsequent to the expiration of twenty-one years from the commencing of the running of the statute.

A decree may be taken finding the title in the defendant, and dismissing the plaintiff’s petition.

Decree for defendant.

Ross, P. J., and Cushing, J., concur.  