I concur in the conclusion reached by Justice Lawlor for the following reasons:
It was conceded at the trial that the defendant was the owner of the record title and the plaintiff's claim was solely one of title by adverse possession. The action was commenced November 12, 1912, but the defendant was not made a party by name nor was summons served upon her so far as appears. So far as appears, she did not become a party until July 25, 1913, when she voluntarily made herself one by filing a so-called answer and cross-complaint. I am not *Page 8 at all certain but that under these circumstances the action was not commenced, so far as the defendant is concerned, until the later date, so that the plaintiff would have been entitled to judgment against her if he had shown adverse possession for the five years preceding that date, even if he failed to show it for the five years preceding the earlier date of the original commencement of the action.
But the finding of the court was a general one against the plaintiff, and implies a finding against the character of the plaintiff's possession as sufficient to give a title by prescription even if maintained for the statutory period. Even if we assume, therefore, that the plaintiff could depend upon a possession commencing five years before the defendant's appearance in the action, that is, a possession which commenced on or before July 25, 1908, instead of upon one commencing on or before November 12, 1907, the finding cannot be overturned unless the evidence shows unmistakably a possession by the plaintiff after July 25, 1908, of such a character as would ripen into a title by prescription. While perhaps it may be that the evidence was sufficient to have sustained a 'finding that plaintiff's possession was of that character, yet it did not, I think, show that fact so unmistakably as to preclude a contrary conclusion. This being the situation, the finding of the trial court is final.
Hearing in Bank denied.
All the Justices concurred.