Holman v. Bonner

Arnold, J., delivered the opinion of the court. A tenant who has not made an open disclaimer of his tenancy, and given notice thereof to his landlord, cannot acquire title against his landlord by operation of the statute of limitations. The statute of limitations does not'run in favor of a tenant against his landlord until there has been an assertion of hostile claim or title by the tenant brought to the knowledge of the landlord. Even after the term has expired, a tenant in possession cannot dispute his landlord’s title without first surrendering possession or giving notice to the landlord that he claims under another title. Zeller’s Lessee v. Eckert, 4 How. U. S. 289 ; 1 Wash, on Real Prop., 4th ed., 566-569; Tyler on Eject. 876-877; Miller v. Lang, 99 Mass. 13 ; Tewksbury v. Magnaff, 33 Cal. 237; Whaley v. Whaley, 1 Spears 225; Watson v. Smith, 10 Yer. 476 ; Floyd v. Mintsey, 7 Rich. L. Rep. 181. It is not controverted that appellant leased the land involved for the year 1873 from appellees, and that he went into possession under this lease. The burden of proof was upon him to show that this permissive possession was converted into an adverse possession, and continued for ten years by him after notice had been given to appellees of the change. Zeller’s Lessee v. Eckert, 4 How. 289; Floyd v. Mintsey, 7 Rich. 181; Tyler on Eject. 876-877, and authorities, supra. This proof was not made. The judgment is affirmed.