(concurring specially). I concur in the reversal of the judgment in this case for the reason that, as I view the evidence, it establishes quite conclusively that the claim asserted by the defendant Annie Keucfic O’Brien is barred by the Statute of Limitations.
It is an established rule in this jurisdiction that § 7381, Compiled Laws 1913, which is a part of the Statute of Limitations, is more than a statute of repose (Steinwand v. Brown, 38 N. D. 602-611, 166 N. W. 129), and we see no distinction in this respect between the ten-year statute (§ 7381, supra), and the twenty-year statute (Comp. Laws 1913, § 7362).
Section 7392 provides that no action for the recovery of real property or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff, his ancestor, predecessor, or grantor was seised or possessed of the premises in question within twenty years before the commencement of such action. See authorities cited in the note in 46 L.R.A.(N.S.) 506.
If the possession of Daniel Martin and of Alice E. Martin had been adverse for the period of twenty years, the plaintiff in this action is, under the rule stated, entitled to have her title quieted as against the claim of the defendant, which can no longer be successfully vindicated by reason of the Statute of Limitations.
In my opinion the evidence does show that the possession of Daniel Martin was adverse. The evidence upon which this conclusion of fact is based is that which describes the relation between Daniel Martin and his sister at the time the first proof was made, at which time a warranty deed was given by the sister making the proof; the *310transactions with respect to the various mortgages which show that the land from the beginning was used by Martin as security as though it were his own; the fact that for many years Martin and his sister, the defendant, Annie Kenefic O’Brien, lived in the same neighborhood; that Martin farmed the land all of the time; that there is no evidence that any rental was ever paid to the defendant or that any claim was ever asserted by her, — that, though Daniel Martin died in October, 1909, and the possession of the plaintiff and appellant continued from that date until the commencement of this action on the 29th day of October, 1917, there is no evidence that any rental was ever paid by the plaintiff to the defendant or that any claim of any sort was ever made by the defendant during this period as owner of the property in question.
The evidence, embracing the relationship assumed by the parties themselves to the land in question, is much more convincing to my mind than the testimony of the brother, which tends to show that Daniel Martin in his lifetime continued to recognize the right of his sister to the land.
The circumstance of the land being assessed in the name of the defendant is, in my judgment, not of any greater importance than the character of the record title itself; for it is universally known that the assessment is in the name of the record owner as a matter of course, and that in reality real property taxes are assessed in rem rather than in personam. There is no evidence that Annie Kenefic O’Brien has ever paid any taxes on the property in question; on the contrary it appears that the taxes have uniformly been paid by the plaintiff since the death of Daniel Martin and by him prior to his death.
Upon this record I am convinced that Daniel Martin in his lifetime was in adverse possession of the land, and that after his death his widow continued in adverse possession; such adverse possession was continued for a sufficient period of time to bar the claim of the . defendant under § 7362, Compiled Laws of 1913.
I am authorized to say that Chief Justice Bruce and my associates, Justice's Christianson and Robinson, concur in the foregoing views.