#### William McCormick, Executor, Appellant, v. Ella Anderson et al., Appellees.

No. 44817.

*889January 9, 1940.

Holsteen *&*Hill, Frederick M. Holsteen, and W. 0. "Weaver, for appellant.

W. E. Jackson and Hicklin & Hicldin, for appellees.

*890Stiger, J.

In 1922, Louise McCormick and ber brother, Arthur Wagner, purchased 80 acres in Louisa county, Iowa. On December 6, 1926, the land was sold for taxes. On December 25, 1926, the tax sale certificate was, at the direction of Louise McCormick, assigned to her mother, Ella Anderson. On May 31, 1930, Mrs. Anderson acquired a tax deed. Mrs. McCormick died in 1936, leaving a will which gave all of her property to William McCormick, her husband, who brought this action, alleging that Louise McCormick had adverse possession of the 80 acres from the date of its purchase in 1922 to the time of her death on May 19, 1936; that the statute of limitations began to run against Mrs. Anderson’s rights under her tax deed on December 6, 1929, on which date she was entitled to a tax deed, and that any interest or claim she acquired under her tax deed was barred by the statute of limitations (section 7295, 1935 Code) on December 6, 1934, and asked that his title under the will be declared superior to Mrs. Anderson’s tax title and that an undivided one-half interest in the real estate be quieted in him and one-half interest in the defendants, Anna Maasdam and Virginia Auge, who are respectively the widow and daughter of Arthur Wagner, deceased. All of the defendants joined in an answer denying the allegations of the petition. No evidence was introduced by defendants.

- Section 7295, 1935 Code, provides that no action for the recovery of real estate sold for nonpayment of taxes shall be brought after 5 years from the execution and recording of the tax deed. Mrs. McCormick was in possession when Mrs. Anderson became entitled to a deed and it is conceded by the parties that the said statute of limitations commenced to run against Mrs. Anderson on December 6, 1929, if Mrs. McCormick’s possession was not subservient to the tax title. The serious question in this case is whether Mrs. Anderson’s tax title was extinguished by possession of the real estate by Mrs. McCormick from December 6, 1929, to December 6, 1934.

Plaintiff’s testimony is substantially as follows: He and his wife leased the farm in 1929 to Eugene Gerst who remained in possession as tenant until 1937. He managed the farm with the consent of his wife, collecting the -rents and keeping up the fences, consulting only his wife and never consulting with Mrs. Anderson. He and his wife paid the taxes for the years 1930, *8911931 and 1932. As we understand tbe record, tbe rents were insufficient to pay these taxes in full and Mrs. Anderson paid tbe deficiency in tbe sum of $77. Tbe witness testified tbat after tbe death of bis wife be *discovered*on June 6, 1936, tbat Mrs. Anderson bad paid tbe taxes for tbe years 1933, 1934, 1936, 1937 and tbe first one half of tbe 1935 taxes. He claims be paid tbe last one half of the 1935 tax. Apparently, when tbe income from tbe farm was insufficient to meet tbe taxes they would be paid by Mrs. Anderson. Tbe income from tbe farm, from 1929 to 1936, was not more than tbe taxes. Plaintiff and bis wife operated a hotel in Burlington and Mrs. Anderson lived at this hotel from 1925 to 1936 as a “non-paying guest.”

Tbe tenant, Mr. G-erst, recognized Mrs. McCormick as tbe owner until in May, 1937, when Mrs. Anderson leased tbe property to him. Plaintiff then commenced this litigation.

With reference to tbe circumstances under which Mrs. Anderson acquired tbe tax deed, plaintiff testified tbat, acting for bis wife, be paid A. N. Sheridan who bad purchased tbe land at tax sale for an assignment of tbe certificate to Mrs. Anderson. “I must have recorded Exhibit ‘Two’, [tax deed] I don’t know tbe date. Tbat says 5th of June, 1930, I must have put it on record — when it came to Burlington from Treasurer at Wapello it was delivered to my wife. I must have gotten it from my wife when I took it to Wapello to record. It was a long time ago, it was either my wife or I, not exactly sure, so I think I did. I knew it was a deed to Ella Anderson.”

Paragraph 4 of tbe will of Louise McCormick reads:

“I own an undivided one-balf interest in tbe E-]/2 SE]4 See. 13, Twp. 74 R-4, Louisa Co. purchased and recorded in tbe name of Louise McCormick and Arthur Wagner. This property by *agreement*was sold for taxes and a tax deed issued to Ella Wagner (Anderson). Tbe widow of Arthur Wagner and myself redeemed tbe property but left tbe title in tbe name of tbe said Ella Wagner. This property is not incumbered except about 2 years taxes in arrears. Tbe said Ella Anderson does not now have, or never did have any equity in this property.” (Italics ours.)

This is all tbe testimony that throws any light on tbe arrangement between Mrs. McCormick and Mrs. Anderson about tbe tax deed. Mrs. Anderson was living at tbe hotel operated *892by plaintiff when tbe tax sale certificate was purchased and he conducted the negotiations with Sheridan and also recorded the tax deed. Mrs. Anderson would occasionally ride out to the farm with plaintiff. If plaintiff knew what the arrangement between his wife and Mrs. Anderson was he did not disclose, it in his testimony.

If plaintiff has established that Mrs. McCormick had the necessary possession of the real estate from December 6, 1929, to December 6, 1934, he must prevail because all rights of Mrs. Anderson under her tax deed would be extinguished by her failure to recover the real estate within the short limitation period. Ordinarily, the possession necessary to bar an action under section 7295 is not the possession required under the general statute of limitations.

In Clark v. Sexton, 122 Iowa 310, 312, 98 N. W. 127, 128, the opinion states:

“We have many times said that possession of land, in order to bar an action under a tax title, need not be such as is required to make it adverse, hostile, and exclusive under the general statute of limitations. If it is such as would entitle the tax title owner to an action against the occupant, who, of course, must be the fee-title owner, it is sufficient. Griffith’s Ex’r v. Carter, 64 Iowa 193*;*Barrett v. Love, 48 Iowa 103. The constructive possession of the tax-title owner yields of course, to the actual possession of the owner, and the owner’s possession need not be adverse. Such possession in fact as would authorize the tax-title owner to maintain an action against the fee-title owner is all that is required to negative the tax-title owner’s constructive possession, and to bar his action after the lapse of the five years. ’ ’

If this rule were applicable to this case, we may assume that the possession of Mrs. McCormick would have been sufficient to entitle plaintiff to a decree. But the evidence reveals that Mrs. McCormick had the deed issued to Mrs. Anderson under some agreement between them.

The effect of the tax deed to Mrs. Anderson under an arrangement with her daughter was, on the question of proof of possession by plaintiff, the same as a conveyance of the real estate by Mrs. McCormick to Mrs. Anderson, and the presumption is that after the tax deed issued the continuing possession *893of Mrs. McCormick was subordinate to tbe tax title of Mrs. Anderson and to defeat tbe tax title plaintiff must overcome tbe presumption and prove that Mrs. McCormick asserted title adverse to and in hostility to Mrs. Anderson, that is, Mrs. Anderson’s possession must have been that adverse, hostile and exclusive possession required by tbe general statute of limitations. Tbe continuing possession of Mrs. McCormick, tbe collection of rents and payment of taxes was not sufficient to establish tbe required adverse possession.

In Garst v. Brutsche, 129 Iowa 501, 504, 105 N. W. 452, 454, the court states:

“The unbroken voice of authority is to tbe effect that, if a grantor remain in possession after tbe execution and delivery of a deed to tbe land, be will be regarded as bolding tbe premises in subserviency to bis grantee, and nothing short of an explicit disclaimer of such relation and a notorious assertion of right in himself will be sufficient to change the character of bis possession, and render it adverse to tbe grantee. ® * * Of course, a grantor, remaining in possession after sale, may make bis possession adverse. But, generally speaking, be must disclaim bolding for tbe grantee, and openly assert bis own title in hostility to tbe title claimed under bis previous deed. Express notice does not seem to be necessary, but there must be such acts of repudiation of tbe relationship as to bring home to the grantee knowledge of tbe fact that a disclaimer is made.”

In McClenahan v. Stevenson, 118 Iowa 106, 112, 91 N. W. 925, 927, the court states:

“But tbe mere fact that tbe grantor and bis heirs remain in possession, enjoying tbe property in tbe same manner as they did before the conveyance was made, does not bind tbe grantee with notice of an adverse claim. * ® * Of course, if tbe grantor and bis heirs remain in possession for tbe statutory period, openly claiming tbe land as their own, and this claim is made known to tbe grantee, either expressly or by implication, title may be acquired through such possession. * * * But be must openly claim tbe land as bis own, and not under or by tbe permission of bis grantee. Tbe presumption, as elsewhere stated, always is that a grantor who remains in possession holds without claim of right, and by sufferance of bis grantee.” See Clark *894v. Chapman, 213 Iowa 737, 239 N. W. 797; Warner v. Tullis, 206 Iowa 680, 218 N. W. 575; Luckhart v. Luckhart, 120 Iowa 248, 94 N. W. 461.

The record warrants the inference that Mrs. Anderson had furnished substantial financial backing to plaintiff and his wife in connection with the operation of the hotel. If there was a trust relation, Mrs. McCormick’s possession would, of course, be in recognition of and not hostile to Mrs. Anderson’s legal title. It is unnecessary to speculate on the terms of the arrangement. Plaintiff seeks to establish his title to the real estate solely on the contention that his wife’s continued possession was sufficient to defeat the tax title. Whatever the understanding, there is no evidence that Mrs. McCormick expressly or impliedly notified Mrs. Anderson that she was asserting her title in hostility to Mrs. Anderson’s fee title under the tax deed.

The only evidence of disclaimer of the relationship of grantor and grantee is found in the will of Mrs. McCormick which was executed long after December 6, 1934, and at a time when Mrs. Anderson’s title was safe from attack under section 7295.

The possession of Mrs. McCormick was subservient to Mrs. Anderson’s tax title during the period from December 6, 1929, to December 6, 1934, during which time she brought no action to recover the property and after December 6, 1934, she was barred from bringing the action by Code section 7295 and her patent title was inferior and yielded to Mrs. Anderson’s new independent title. It follows that plaintiff, who claims title through Mrs. McCormick, was not entitled to a decree.

On cross-examination of plaintiff he was asked whether he recalled the time Mrs. Anderson gave him $5,000 in bonds to permit him to operate the hotel. The witness first denied then admitted that Mrs. Anderson “put up” $5,000 for him but testified she “got paid for it.” Plaintiff claims this was not proper cross-examination and immaterial to the issues in the case. The question was asked after the witness had testified that Mrs. Anderson advanced money from time to time while he was operating the hotel, “possibly a little, just a little loan for a few weeks or few months, not very often.”

Mrs. McCormick’s will stated that the deed was issued to Ella Anderson “by agreement.” Because of inferences that *895might be drawn from this testimony as to the purpose of giving the deed the evidence was not inadmissible, though in view of our disposition of the case it has very little probative value, and we have not considered it in reaching our conclusion.

Plaintiff testified on direct examination that he met with Mrs. Anderson in the Burlington Savings Bank after the death of his wife, that the tax deed was in his wife’s box, that Mrs. Anderson saw the deed and nothing was said about the ownership of the tax deed at this time. He was then asked:

“Q. State whether or not Mrs. Anderson made any claim to this eighty acres of land in Louisa County at that time or prior to that?”

The court sustained appellees’ objection to the question. The question called not for the conversation but for a conclusion. It refers to *any*claim and not to a claim made under a tax deed. The witness stated that nothing was said about ownership of the deed at the time and later testified that the first he knew that Mrs. Anderson claimed the real estate was after his wife’s death when he discovered that she had been paying the taxes. Apparently this is the only claim he knew Mrs. Anderson made. Clearly, there was no prejudice to appellant in sustaining the objection.

The case is affirmed. — Affirmed.

Sager, Miller, Hamilton, Mitohell, and Bliss, JJ., concur.

Hale, J., takes no part.