ing of the action, is competent evidence, in connection with a parol lease taken by the plaintiff from the defendant, to show that the possession was not adverse. Roggencamp v. Converse, 15 Neb. 105 (17 N. W. 361).

167. (1900.) In ejectment, proof of adverse possession is admissible under a general denial. Murray v. Romine, 60 Neb. 94 (82 N. W. 318); Link v. Campbell, 72 Neb. 310 (104 N. W. 939).

168. (1902.) Evidence of admissions by an occupant, tending to show that his possession was not adverse, which were not made until after sufficient time had elapsed to vest the title in him by adverse possession, is properly excluded. Baty v. Elrod, 66 Neb. 735 (92 N. W. 1032).

Weight and sufficiency in general. 169. (1891.) Upon the testimony preserved in the record, held, that the defendant had acquired title by adverse possession. Malcom v. Hanson, 32 Neb. 50 (48 N. W. 883).

170. (1892). In an action for possession of certain lots, upon the evidence presented in the record, the title of the plaintiff by adverse possession was clearly established. Ballard v. Hansen, 33 Neb. 861 (51 N. W. 295).

171. (1893.) The evidence in case stated in opinion held not sufficient to show title in defendant by adverse posession. Sprague v. Fuller, 36 Neb. 220 (54 N. W. 423).

172. (1894.) Evidence that shows a person had fenced in a portion of a city street and has held possession by such for more than ten years last past sustains a finding of title to such premises in such person. Lewis v. Baker, 39 Neb. 636 (58 N. W. 126). 173. (1896.) Evidence examined, and held to sustain finding against the defendant upon the issue of adverse possession of property in dispute. Link v. Connell, 48 Neb. 574 (67 N. W. 475).

174. (1898.) No definite or fixed rule can be framed in relation to what shall constitute indicia of adverse possession; such evidences must necessarily vary and be in accord with the conditions existent in the portion of the political division or subdivision in which the property to which it is claimed applicable is situated in regard to age of settlement, the extent and prevailing manner of cultivation, or use of lands, also

the purposes for which the lands are or may be by nature adapted. Lewon v. Heath, 53 Neb. 707 (74 N. W. 274).

175. (1903.) Evidence examined, and held to support the findings and judgment of the district court, that plaintiff had not acquired title by adverse possession. Marwell v. Odell, 4 Unof. 645 (95 N. W. 840).

176. (1903.) Evidence examined, and held insufficient to sustain a claim of title by adverse possession. Zweible v. Myers. 69 Neb. 294 (95 N. W. 597).

177. (1906.) Where such occupant entered originally without color of title or claim of right, and the acts relied on to show entry and occupation were consistent with a mere intention to trespass from time to time until interfered with by the true owner, his testimony that he intended to take possession and hold and occupy as owner, uncor roborated by acts necessarily indicating such intention, is not sufficient to require a finding in his favor. Bush v. Griffin, 76 Neb. 214 (107 N. W. 247).

178. (1906.) Evidence in an action to restrain defendant from consuming all of a stream of water, that flowed through the lands of both, held not to sustain the defense of adverse possession. Burson v. Percy, 77 Neb. 654 (110 N. W. 544).

Weight and sufficiency to prove continuity of possession.

179. (1896.) Evidence in ejectment showing defendant and his grantors have held open possession of more than twenty years sustains a finding for defendant. Lantry v. Wolff, 49 Neb. 374 (68 N. W. 494).

180. (1904.) Evidence that one claiming land by adverse possession held by himself and grantors, who had held actual possession and control for more than the statutory period, sustains a finding for him. Montague v. Marunda, 71 Neb. 805 (99 N. W. 653).

181. (1908. Evidence examined, and on the ground of adverse possession for the statutory period, against a municipal corporation where the city claimed title to the land by dedication as a public street, but offered no proof of this allegation, and the plaintiff showed adverse possession in himself and grantor for more than ten years prior to the commencement of his action, plaintiff was entitled to a decree. City of South Omaha v. Ford, 5 Unof. 310 (98 N. W. 665).

181a. (1908.) Evidence examined, and held not to sustain the appellant's defense of title of adverse possession. Jenkins Land & Live Stock Co. v. Atwood, 80 Neb. 806 (115 N. W. 305).

182. (1906.) While the fact that one claiming title by adverse possession failed to pay taxes on the land during his occupancy would not of itself necessarily defeat his claim, it is entitled to weight as tending to show that he did not intend to claim title as against the rightful owner. Bush v. Griffin, 76 Neb. 214 (107 N. W. 247).

Weight and sufficiency to prove character of possession.

183. (1889.) Evidence held to sustain finding that alleged adverse possession of defendant holding under void execution sale, was not open, notorious, adverse and exclusive. Gue v. Jones, 25 Neb. 634 (41 N. W. 555); Noyce v. Jones, 25 Neb. 643 (41 N. W. 555); Noyce v. Jones, 25 Neb. 643 (41 N. W. 558).

184. (1896.) It is the actual, continuous, open, notorious, exclusive, adverse possession that ripens into an absolute title. Payment of taxes by the occupant for a series of years is a strong circumstance, in connection with others, tending to show the adverse holding and the abandonment of the property by the holder of the title. Omaha & F. L. & T. Co. v. Barrett, 31 Neb. 803 (48 N. W. 967).

185. (1894.) Evidence that a road master in charge of the construction of a side track over certain land, when a person claiming to be the owner of the land objected to the construction of the track, promised such person that he would be paid for the land occupied, is insufficient to prove that the company entered under a license from the claimant and in recognition of his title. Hanlon v. Union P. R. Co., 40 Neb. 52 (58 N. W. 590).

186. (1896.) The evidence in this case examined, and held to show such acts in respect to a piece of land not suitable to general farming purposes, but fit for grazing, and a portion of which was what is termed "hay land," as constituted actual, continued, notorious, and adverse possession for the time required by statute. Twohig v. Leamer, 48 Neb. 247 (67 N. W. 152).

187. (1898.) On an issue of adverse possession, where the proof tends to show a continuous exclusive possession for the statutory period by acts indicating domin

pant entered upon land originally without color of title or claim of right, and the acts relied on to show entry and occupation were consistent with an intention to trespass from time to time until interfered with by the true owner, his testimony that he intended to hold and occupy as owner, uncorroborated by acts necessarily indicating such intention, is not sufficient to require a finding in his favor. Knight v. Denman, 64 Neb. 814 (90 N. W. 863); Ritter v. Myers, 3 Unof. 684 (92 N. W. 638). 189. (1902.) Evidence in an action of ejectment held to show that defendant and her grantors originally took possession of the land in dispute as owners, and have ever since so claimed and held it. Baty v. Elrod, 66 Neb. 744 (97 N. W. 343).

189a.

(1907.) Evidence of ten years' use by the public of a road through cultivated land without substantial variance, with the knowledge and acquiescence of the owner for a period of ten years, raises the presumption of an implied dedication and acceptance of such road as a public highway. Brandt v. Olson, 79 Neb. 612 (113 N. W. 151).

190. (1907.) The payment of taxes by the occupant for more than ten years, in connection with the actual use and cultivation of the premises, is a strong circumstance tending to show the adverse holding of such occupant, and insufficient to support a finding by the jury that the party was in possession under a claim of ownership. Dredla v. Patz, 78 Neb. 506 (111 N. W. 136).

Weignt and sufficiency to prove recognition of owner's title.

191. (1902.) Evidence offered by plaintiff did not tend to show that an agreement claimed by plaintiff to survey the land and relocate the fence, was made before the lapse of ten years from the time when the ancestor of plaintiff's grantors was entitled to a patent, and was therefore insufficient to authorize a verdict for plaintiff. Baty v. Elrod, 66 Neb. 744 (97 N. W. 343).

192. (1902.) Evidence tendered by plaintiff as to an agreement to survey the land

and relocate the line, if taken as true by the jury, held to be sufficient to prevent the further running of the statute of limitations, if such agreement had been shown to have been made before action was barred. Baty v. Elrod, 66 Neb. 744 (97 N. W. 343).

193. (1906.) One who buys land at execution and recognizes the owner's right to redeem, with evidence showing that he did not claim title as against the owner, a finding for plaintiff is sustained. Bush v. Griffin, 76 Neb. 214 (107 N. W. 247).

194. (1906.) Evidence showing that letters from a claimant to land by adverse possession that were written by his wife, he himself being unable to write, and some of the letters were written unknown to him, in which the plaintiff's title is recognized, is insufficient to disprove adverse possession. Martin v. Martin, 76 Neb. 335 (107 N. W. 580).

Question for jury.

195. (1902.) If there is no evidence as to when an entryman became entitled to his patent to government land, it is proper to refuse an instruction which leaves it to the jury to determine when possession of the land became adverse. Baty v. Elrod, 66 Neb. 735 (92 N. W. 1032).

196. (1903.) Former conclusion adhered to (64 Neb. 814) as to error in the instructions by which the issue of defendant's adverse possession was submitted to the jury. Knight v. Denman, 68 Neb. 383 (94 N. W. 622).

Instructions.

197. (1892.) Instructions bearing on the question of adverse possession examined and approved. Ballard v. Hansen, 33 Neb. 861 (51 N. W. 295).

198. (1900.) The use of the word "hostile" in an instruction, as describing the character of the possession of real estate under which title is claimed by adverse possession, while not to be commended, held

200.

(1903.) It is not necessary, in telling the jury that a holding under a mistake as to the true boundary may be adverse, to set forth all the necessary elements of adverse possession. Williams v. Shepherdson, 4 Unof. 608 (95 N. W. 827).

201. (1903.) It is not necessary to restate all the elements of adverse possession in telling the jury that the period of such possession of defendant may be tacked to that of his grantors to make up the statutory time. Williams v. Shepherdson, 4 Unof. 608 (95 N. W. 827). 202. (1904.) In an ejectment case, title by adverse possession may be proved under a general denial, and, when such title is one of the defenses relied upon by the defendant, he is entitled to have the jury instructed with reference to the same, if any competent evidence has been introduced to support that issue, even though the evidence may be contradicted or may be considered insufficient by the jury. Link v. Campbell, 72 Neb. 310 (104 N. W. 939).

203. (1906.) An instruction defining adverse possession held not prejudicial to the defendant. Taylor v. Hover, 77 Neb. 97 (108 N. W. 149).

ADVICE OF COUNSEL.

Oath, § 16.

Venue, § 17.

CROSS REFERENCES.

Affidavits in particular cases, see specific topics.

Affidavits as part of record in appellate court, see Appeal and Error, §§ 827-835.

Filing of, for change of venue as appearance, see Appearance, § 28

In attachment, see Attachment, §§ 86-143. Sufficiency of averment in attachment, see Attachment, §§ 92-122.

Effect of affidavit sworn to before attorney in interest, see Attachment, §§ 86-88.

In contempt proceedings, see Contempt, §§ 53-57.

Affidavit of prejudice of judge as contempt, see Contempt, §§ 4-8.

Affidavit for continuance, see Continuance, $$ 30-54.

For publication of service in divorce, see Divorce, §§ 54-57.

Sufficiency of information in garnishment, see Garnishment, §§ 40-45.

party before some person who has authority to administer oaths. Bantley v. Finney, 43 Neb. 794 (62 N. W. 213).

2. (1895.) The essentials of the affidavit required by section 78 of the code of civil procedure, in order that a valid service by publication may be based thereon, are that the affidavit must be in writing, filed in the case where made, and sworn to. Bantley v. Finney, 43 Neb. 794 (62 N. W. 113).

Persons who may make.

3. (1893.) An affidavit for attachment is not void, although purporting in its opening clause to be that of a corporation plaintiff, where it sufficiently appears from the whole affidavit that it is that of the agent of the corporation, and that such agent in fact Moline, made oath thereto and signed it. Milburn & Stoddard Co. v. Curtis, 38 Neb. 520 (57 N. W. 161).

Knowledge or information of affiant.

4. (1901.) When the facts required in an affidavit are of such a character that positive knowledge on the part of affiant is impossible, they may be sworn to on information and belief. Leigh v. Green, 62 Neb. 344 (86 N. W. 1093; 89 Am. St. Rep. 751). 5.

(1902.) Where a showing by affidavit is required as to facts which are necessarily matters of information and belief, an affidavit on information and belief is sufficient. Leigh v. Green, 64 Neb. 533 (90 N. W. 255).

6. (1902.) So long as a witness is willing to testify to a fact positively, and does so testify, his affidavit, in which such fact is positively stated, does not become an affidavit on information and belief by the addition of the statement that he verily believes

all the facts set forth to be true. Leigh v. Green, 64 Neb. 533 (90 N. W. 255).

Authority to take.

7. (1884.) Under code of civil procedure, section 371, providing that an affidavit may be made before any person authorized to take depositions, an affidavit taken before an attorney in the case may, on motion, be stricken from the files. Collins v. Stewart, 16 Neb. 52 (20 N. W. 11).

8. (1898.) The amendment of 1887 to section 118 of the code, so as to allow a client to verify a pleading before his attorney, notwithstanding its general language, cannot be held to apply to affidavits, other than those verifying pleadings, without giving the amending act a construction which would render it violative of section 11, article III, constitution. Horkey v. Kendall, 53 Neb. 522 (73 N. W. 953; 68 Am. St. Rep. 623).

9. (1898.) A notary public who is the attorney of one of the parties to an action is not permitted to take the affidavit of his client for the purpose of procuring an attachment. Horkey v. Kendall, 53 Neb. 522 (73 N. W. 953; 68 Am. St. Rep. 623).

10. (1898.) While a notary public may take the affidavit of his client for the purpose of procuring an attachment, the taking of an affidavit as indicated is a mere irregularity, and the affidavit is not a nullity, and its defects may therefore be cured by amendment. Dobry v. Western Mfg. Co., 57 Neb. 228 (77 N. W. 656).

11. (1898.) Validity of affidavit executed before an officer not permitted to take it. Brownell v. Fuller, 54 Neb. 586 (74 N. W. 1105).

Construction of ambiguous language.

12. (1897.) Ambiguous language in an affidavit drawn by counsel for a party will be most strongly construed against the latter. Nebraska Moline Plow Co. v. Fuehring, 52 Neb. 541 (72 N. W. 1003).

13. (1897.) Where a statement of an affidavit may be read so as to give it a meaning which will make the affidavit defective, but may also be read so as to give it a signification which will support the affidavit, the latter will be adopted, especially where it is a less strained and technical reading than the former. Hudelson v. First Nat. Bank of Tobias, 51 Neb. 557 (71 N. W. 304). Entitling.

14. (1883.) Failure to give a title to the body of an affidavit is a mere technical de

fect, and not fatal. Burnham v. Doolittle, 14 Neb. 214 (15 N. W. 606.)

15. (1893.) A mistake in the title of an affidavit is immaterial after judgment. Majors v. Edwards, 36 Neb. 56 (53 N. W. 1041). Oath.

16. (1895.) Whether or not an attorney swore to an affidavit at the time he made and filed it, is a question of fact to be proved, as any other fact, by any competent evidence. Bantley v. Finney, 43 Neb. 794 (62 N. W. 213).

Venue.

Effect of want of venue, see Attachment, § 130.

17. (1903). An affidavit for service of summons by publication, void for lack of a venue, cannot be cured or made valid by resorting to extrinsic evidence, when the validity of the decree rendered thereon is assailed. Albers v. Kozeluh, 68 Neb. 529 (97 N. W. 646).

Jurat or certificate of officer taking.

18. (1878.) An affidavit should show on its face that it was taken within the officer's jurisdiction. Blair v. West Point Mfg. Co., 7 Neb. 147.

19. (1894. Affidavit for mechanics' lien whose jurat shows the venue to have been a county different from that for which the notary was appointed is insufficient to perfect the lien and renders it incompetent in evidence. Byrd v. Cochran, 39 Neb. 109 (58 N. W. 127).

20. (1895.) The certificate of a notary public to an affidavit is presumptive evidence of the facts stated in such certificate, including the statement that affiant signed the affidavit. Smith v. Johnson, 43 Neb. 754 (62 N. W. 217).

21. (1895.) The jurat of an officer attached to an affidavit is no part of the affidavit. Bantley v. Finney, 43 Neb. 794 (62 N. W. 213).

22. (1895.) An affidavit for a publication of summons actually sworn to does not lose its vitality because the officer who administered the oath failed to attach his jurat. Bantley v. Finney, 43 Neb. 794 (62 N. W. 213).

23. (1895.) Where an oer fails to attach his jurat to an affidavit for service by publication, parol evidence in a proper case may be admitted to prove that affiant did in fact swear to the affidavit. Bantley v. Finney, 43 Neb. 794 (62 N. W. 213).