Keas v. Burns

23 Iowa 235

Opinion

Cole, J.

Oooupyrtro possession must be adverse.. 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.