MR. CHIEF COMMISSIONER POORMAN
prepared the opinion for the court.
Appeals by defendant from a judgment entered in favor of plaintiff and from an order of the court overruling defendant’s motion for a new trial.
The action is in ejectment. The complaint contains the usual allegations in such actions. In his answer the defendant admits the corporate capacity of the plaintiff and puts in issue all the other material averments of the complaint and alleges as a first separate and specific defense that the plaintiff is not the real party in interest, and as a second separate and specific defense defendant alleges title in himself to the lands in dispute by possession and adverse use for more than ten years prior to the commencement of the action.
When the case was called for trial there was some discussion between the parties as to whether a jury was required, but they failed to agree upon the statement of facts, and the court directed that a jury be called. The defendant then admitted that the record title to the land in dispute was in the plaintiff, and that defendant was in possession of the land. Thereupon plaintiff rested, and evidence was introduced by defendant, and rebuttal evidence by plaintiff. At the close of the testimony “the court proceeded to settle the interrogatories to be submitted to the jury,. and announced that the court would submit the following.” Then follows the two interrogatories submitted. The defendant then requested the court to submit to the jury two questions proposed by him. The request of the defendant was refused, and he excepted to the action of [549]*549the court both in refusing to submit the interrogatories proposed by the defendant and in submitting those proposed by the court. The interrogatories submitted by the court to the jury were as to whether the defendant or his predecessor in interest had recognized the ownership of the plaintiff or its predecessor. The jury answered both in the negative. The court set aside the findings of the jury, and adopted certain findings proposed by the plaintiff, and denied other findings proposed by the defendant. Judgment wa.s subsequently entered on the finding adopted to the effect that the plaintiff was the owner in fee of the land in question, and' entitled to possession thereof. No damage was awarded to plaintiff.
The appellant claims that the court erred (1) in setting aside the findings made by jury; (2) in adopting the findings proposed by plaintiff; (3) in denying defendant’s request to submit the two additional interrogatories to the jury; (4) in rejecting and refusing to adopt the findings proposed by the defendant; (5) in making and giving the judgment entered herein; (6) in overruling defendant’s motion for a new trial.
The land in dispute consists of a triangular tract containing about twenty acres in the northeast corner of section 33, township 13 north, range 20 west, the record title of the entire section being in the plaintiff. One Theodore Donovan was, up to the time of his death, the owner of adjoining land described as the S. E. ^ of section 28 in said township. More than ten years prior to his death Donovan inclosed a part of the land in dispute, together with portions of his own lands, and used the same, each and every year thereafter, for general agricultural and gardening purposes. On June 2, 1915, Donovan died, leaving a will by the terms of which he devised and bequeathed all of his property of “whatever nature and description to Mr. and Mrs. W. C. Burks,” and Mr. Burks was by the will appointed “as executor and administrator” of his estate, and on June 26, 1915, letters were issued to W. C. Burks. The will was admitted to probate, inventory made and filed, the estate administered, decree of final distribution made, [550]*550but not any reference was made to tbe land in dispute in any proceeding in tbe probate court. Defendant’s witnesses testified that Donovan bad used and occupied the land for more than ten years prior to his death, and some of the witnesses testified that Donovan had occupied the land for twenty-three or twenty-four years. It is admitted that defendant has been in possession of the land since October 1, 1917. Defendant testified that he had known Donovan for fourteen years immediately prior to his death, and that he had used and occupied this land consecutively every year; that he had seen Donovan as frequently as once a month, and that he had helped him cultivate the land. Donovan was moved to the home of defendant during his last illness, and died there. Defendant now owns the S. E. 14 of said section 28, formerly owned by Donovan. Defendant further says with reference to Donovan’s connection with the land that “he always talked to me as though he owned it,” but the statements made by Donovan are not in the record, and the statement made by the witness is only his conclusion.
Plaintiff does not dispute the occupancy and cultivation of the land by Donovan, but maintains that the same was not adverse to plaintiff. The testimony introduced by plaintiff tends to show that from 1906 to within three months of the time of his death, Donovan repeatedly tried to purchase this land from the plaintiff, and its immediate predecessor in interest, and that he never did make any claim of adverse ownership; that plaintiff paid taxes on the land during all of this time. Prior to the death of Donovan, one W. P. Maclay had agreed with plaintiff to purchase all of said section 33. Maclay was called as a witness, and in detailing a conversation which he had with Donovan, about a month before his death, said: “I was up there and stopped in. He was out in the garden, and we got to talking about that land, and he said, ‘If you buy this section, I would to have you let me have what is here this side of the road. * * * I have tried to buy it, but I haven’t been able to do it. Perhaps if you buy the whole [551]*551section, you could do it that way.’ ” This evidence, in so far as it related to Donovan’s efforts to buy the land, is not disputed. The claim that the action is not brought in the name of the real party in interest is not sustained by any evidence. "We then have four admitted facts in this case: (1) That the plaintiff has the record legal title to the land in question; (2) that it was occupied and cultivated by Donovan for more than ten years prior to the commencement of the action; (3) that Donovan during his occupancy repeatedly tried to buy the land from the plaintiff and its predecessor in interest; (4) that defendant by reason of the will succeeded to whatever interest Donovan had in the land.
[1] The payment of taxes on the land by the plaintiff is of no value as evidence, except a mere incident tending to show that plaintiff had not abandoned the land, for the payment of taxes is not an element of adverse possession unless made so by statutory requirement. (Morrison v. Linn, 50 Mont. 396, 147 Pac. 166.)
[2] There was not any statute in this state requiring the adverse holder to pay taxes until the enactment of Chapter 3 of the Session Laws of 1917, nor is the fact that Donovan did not declare that he owned the land or that he was holding it adversely to the interest of the plaintiff of controlling weight as evidence for it is actions rather than words that must determine the question. (Rude v. Marshall, 54 Mont. 27, 166 Pac. 298.)
[3,4] The occupation of property by one not the owner is deemed to have been under and in subordination to the legal title. (Section 6435, Rev. Codes; Morrison
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MR. CHIEF COMMISSIONER POORMAN
prepared the opinion for the court.
Appeals by defendant from a judgment entered in favor of plaintiff and from an order of the court overruling defendant’s motion for a new trial.
The action is in ejectment. The complaint contains the usual allegations in such actions. In his answer the defendant admits the corporate capacity of the plaintiff and puts in issue all the other material averments of the complaint and alleges as a first separate and specific defense that the plaintiff is not the real party in interest, and as a second separate and specific defense defendant alleges title in himself to the lands in dispute by possession and adverse use for more than ten years prior to the commencement of the action.
When the case was called for trial there was some discussion between the parties as to whether a jury was required, but they failed to agree upon the statement of facts, and the court directed that a jury be called. The defendant then admitted that the record title to the land in dispute was in the plaintiff, and that defendant was in possession of the land. Thereupon plaintiff rested, and evidence was introduced by defendant, and rebuttal evidence by plaintiff. At the close of the testimony “the court proceeded to settle the interrogatories to be submitted to the jury,. and announced that the court would submit the following.” Then follows the two interrogatories submitted. The defendant then requested the court to submit to the jury two questions proposed by him. The request of the defendant was refused, and he excepted to the action of [549]*549the court both in refusing to submit the interrogatories proposed by the defendant and in submitting those proposed by the court. The interrogatories submitted by the court to the jury were as to whether the defendant or his predecessor in interest had recognized the ownership of the plaintiff or its predecessor. The jury answered both in the negative. The court set aside the findings of the jury, and adopted certain findings proposed by the plaintiff, and denied other findings proposed by the defendant. Judgment wa.s subsequently entered on the finding adopted to the effect that the plaintiff was the owner in fee of the land in question, and' entitled to possession thereof. No damage was awarded to plaintiff.
The appellant claims that the court erred (1) in setting aside the findings made by jury; (2) in adopting the findings proposed by plaintiff; (3) in denying defendant’s request to submit the two additional interrogatories to the jury; (4) in rejecting and refusing to adopt the findings proposed by the defendant; (5) in making and giving the judgment entered herein; (6) in overruling defendant’s motion for a new trial.
The land in dispute consists of a triangular tract containing about twenty acres in the northeast corner of section 33, township 13 north, range 20 west, the record title of the entire section being in the plaintiff. One Theodore Donovan was, up to the time of his death, the owner of adjoining land described as the S. E. ^ of section 28 in said township. More than ten years prior to his death Donovan inclosed a part of the land in dispute, together with portions of his own lands, and used the same, each and every year thereafter, for general agricultural and gardening purposes. On June 2, 1915, Donovan died, leaving a will by the terms of which he devised and bequeathed all of his property of “whatever nature and description to Mr. and Mrs. W. C. Burks,” and Mr. Burks was by the will appointed “as executor and administrator” of his estate, and on June 26, 1915, letters were issued to W. C. Burks. The will was admitted to probate, inventory made and filed, the estate administered, decree of final distribution made, [550]*550but not any reference was made to tbe land in dispute in any proceeding in tbe probate court. Defendant’s witnesses testified that Donovan bad used and occupied the land for more than ten years prior to his death, and some of the witnesses testified that Donovan had occupied the land for twenty-three or twenty-four years. It is admitted that defendant has been in possession of the land since October 1, 1917. Defendant testified that he had known Donovan for fourteen years immediately prior to his death, and that he had used and occupied this land consecutively every year; that he had seen Donovan as frequently as once a month, and that he had helped him cultivate the land. Donovan was moved to the home of defendant during his last illness, and died there. Defendant now owns the S. E. 14 of said section 28, formerly owned by Donovan. Defendant further says with reference to Donovan’s connection with the land that “he always talked to me as though he owned it,” but the statements made by Donovan are not in the record, and the statement made by the witness is only his conclusion.
Plaintiff does not dispute the occupancy and cultivation of the land by Donovan, but maintains that the same was not adverse to plaintiff. The testimony introduced by plaintiff tends to show that from 1906 to within three months of the time of his death, Donovan repeatedly tried to purchase this land from the plaintiff, and its immediate predecessor in interest, and that he never did make any claim of adverse ownership; that plaintiff paid taxes on the land during all of this time. Prior to the death of Donovan, one W. P. Maclay had agreed with plaintiff to purchase all of said section 33. Maclay was called as a witness, and in detailing a conversation which he had with Donovan, about a month before his death, said: “I was up there and stopped in. He was out in the garden, and we got to talking about that land, and he said, ‘If you buy this section, I would to have you let me have what is here this side of the road. * * * I have tried to buy it, but I haven’t been able to do it. Perhaps if you buy the whole [551]*551section, you could do it that way.’ ” This evidence, in so far as it related to Donovan’s efforts to buy the land, is not disputed. The claim that the action is not brought in the name of the real party in interest is not sustained by any evidence. "We then have four admitted facts in this case: (1) That the plaintiff has the record legal title to the land in question; (2) that it was occupied and cultivated by Donovan for more than ten years prior to the commencement of the action; (3) that Donovan during his occupancy repeatedly tried to buy the land from the plaintiff and its predecessor in interest; (4) that defendant by reason of the will succeeded to whatever interest Donovan had in the land.
[1] The payment of taxes on the land by the plaintiff is of no value as evidence, except a mere incident tending to show that plaintiff had not abandoned the land, for the payment of taxes is not an element of adverse possession unless made so by statutory requirement. (Morrison v. Linn, 50 Mont. 396, 147 Pac. 166.)
[2] There was not any statute in this state requiring the adverse holder to pay taxes until the enactment of Chapter 3 of the Session Laws of 1917, nor is the fact that Donovan did not declare that he owned the land or that he was holding it adversely to the interest of the plaintiff of controlling weight as evidence for it is actions rather than words that must determine the question. (Rude v. Marshall, 54 Mont. 27, 166 Pac. 298.)
[3,4] The occupation of property by one not the owner is deemed to have been under and in subordination to the legal title. (Section 6435, Rev. Codes; Morrison v. Linn, supra.)
“The question of adverse possession is one of intention. The intention must be discovered from all the circumstances of the case.” (Lamme v. Dodson, 4 Mont. 560, 2 Pac. 298.)
“The possession of real estate may be open and notorious and still not be adverse.” (Crawford v. Ahrnes, 103 Mo. 88, 15 S. W. 341.)
[552]*552The adverse possession must be of such a character as to afford the owner the means of knowing of it and of the claim. (Hicklin v. McClear, 18 Or. 126, 22 Pac. 1057.)
[5] Possession alone is not sufficient to sustain a claim of title by adverse possession. Under the facts presented in this case, the sole basis of defendant’s claim are the provisions of the will, and the fact that Donovan fenced a part of the land in connection with a portion of his own, and occupied and cultivated the same. In addition to the presumption that occupancy is subservient to the legal title is the undisputed evidence that Donovan repeatedly tried to purchase the property from the plaintiff and its predecessor in interest. The defendant, notwithstanding his close association with Donovan, evidently did not know that he intended to hold this land adversely, or that it constituted a part of his estate. His evidence was to the effect that he was very familiar with this land, and the fact that Donovan occupied it and cultivated it for a period of fourteen years, and still he settled the estate without listing this property as a part thereof, or making any reference to it until after the final decree had been entered.
[6] The evidence as here given is not sufficient to sustain either a verdict or a finding in favor of the defendant; hence the court did not err in taking the case from the jury and making its findings and rendering judgment in favor of the plaintiff. The appellant’s claim that he was deprived of the right of trial by a jury is therefore wholly immaterial. We may remark, however, that neither in the case of Chessman v. Hale, 31 Mont. 577, 3 Ann. Cas. 1038, 68 L. R. A. 410, 79 Pac. 254, nor in any other ease, has this court ever held that a party may not by his course of conduct bar himself from the right of raising the question that he was not granted a trial by jury in a civil action.
We recommend that the judgment and order appealed from be affirmed.
Per Curiam :
For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.
Affirmed.