* * *" See also Anderson v. Northrop, 1892, 30 Fla. 612, 12 So. 318; Scott v. Fairlie, 1921, 81 Fla. 438, 89 So. 128; Fairlie v. Scott, 1924, 88 Fla. 229, 102 So. 247, and Mullan v. Bank of Pasco County, 1931, 101 Fla. 1097, 133 So. 323. Further with reference to adverse possession, it is stated in the case of Mullan v. Bank of Pasco County, 1931, 101 Fla. 1097, 133 So. 323, on page 328:
The possession of the parents is deemed in subordination to the title of the child, irrespective of the parents exercise of dominion over the property, attributable to the parental relationship and will remain amicable unless or until made hostile by some unequivocal act. Whitworth v. Whitworth, 205 Ky. 247, 265 S.W. 801; Parker v. Beckwith, 251 Mich. 434, 232 N.W. 208; Clendenin v. Clendenin, 181 N.C. 465, 107 S.E. 458; Collins v. Colleran, 86 Minn. 199, 90 N.W. 364; Mullan v. Pasco County Bank, 101 Fla. 1097, 133 So. 323. Lapse of time is only one, and ordinarily not the controlling or most important, of the elements of laches.
Here, no notice of intervener's claim was brought home to the record owners and there is no basis for a presumption that his possession was the equivalent of notice or that such possession was adverse, since there is here a family relation that account for his occupancy of the premises. Mullan v. Bank of Pasco County, 101 Fla. 1097, 133 So. 323; Harrison v. Speer, 94 Fla. 937, 942, 114 So. 515; Frazier v. Morris, 161 Ky. 72, 170 S.W. 496. Indeed, every presumption favors possession in subordination to the title of the true owner. Section 95.13, F.S.A.; cf. Palmer v. Greene, 159 Fla. 174, 31 So.2d 706. Nor is there anything unusual in the circumstance that Stella and Ursula D'Ferro and appellant's daughter permitted him to occupy the building and hold possession under them for an indefinite period of time without requiring an accounting for its use and rents, and it would be sanctioning a rather harsh doctrine for us to say that the price of indulgence is forfeiture of their right of property in the building and lands in question.
At least two other jurisdictions, Florida and Alabama, have indicated a statute of limitations will run before a future interest becomes possessory because the holder of a future interest can bring suit to remove a cloud on title. 4 John A. Borron, Jr., Simes & Smith: The Law of Future Interests § 1964, at 247 & nn. 7–8 (3d ed. 2005); see also Lewis v. Belk, 219 Ala. 343, 122 So. 413, 414 (1929); Mullan v. Bank of Pasco Cnty., 101 Fla. 1097, 133 So. 323, 329 (1931). We think Lane and Lytle are controlling here.
At least two other jurisdictions, Florida and Alabama, have indicated a statute of limitations will run before a future interest becomes possessory because the holder of a future interest can bring suit to remove a cloud on title. 4 John A. Borron, Jr., Simes & Smith: The Law of Future Interests § 1964, at 247 & nn.7-8 (3d ed. 2005); see also Lewis v. Belk, 122 So. 413, 414 (Ala. 1929); Mullan v. Bank of Pasco Cnty., 133 So. 323, 329 (Fla. 1931). We think Lane and Lytle are controlling here.
"See Bellamy v. Shryock, 211 Ark. 116, 122-123, 199 S.W.2d 580 (1947) (stronger evidence of hostility required to rebut presumption of permissive use where parent-child relationship between adverse claimants and true owner); Kelly v. Mullin, 159 Colo. 573, 577-578, 413 P.2d 186 (1966) (`strong proof' of hostility required where true owner is relative of claimants). See also Matter of the Estate of Qualteri, 757 P.2d 1093, 1095 (Colo.Ct.App. 1988) (court declines to adopt presumption of permissive use among family members, but holds that `strong proof' of hostility is required); Mullan v. Bank of Pasco County, 101 Fla. 1097, 1107, 133 So. 323 (1931) (possession by parent of child's land usually presumed permissive `subject to certain general exceptions' where family lived together as `homestead'); Parker v. Beckwith, 251 Mich. 434, 437, 232 N.W. 208 (1930) (father could not acquire title by adverse possession against daughter living in household with him during a portion of the time required to establish claim); Tyler v. Wright, 164 Mich. 606, 608, 130 N.W. 205 (1911) (close relationship of parent and child may raise presumption of permissive use, but relationship alone not conclusive where no evidence of their friendly relationship); O'Boyle v. McHugh, 66 Minn. 390, 391, 69 N.W. 37 (1896) (possession and cultivation of land by mother not enough to rebut presumption of permissive use vested in relationship with children); Chase v. Lavelle, 105 Neb. 796, 801, 181 N.W. 936 (1921) (use of land by child presumptively permissive); Demmitt v. McMillan, 16 Ohio App.3d 138, 141, 16 OBR 146, 474 N.E.2d 1212 (1984) (family relationship
See Bellamy v. Shryock, 211 Ark. 116, 122-123 (1947) (stronger evidence of hostility required to rebut presumption of permissive use where parent-child relationship between adverse claimants and true owner); Kelly v. Mullin, 159 Colo. 573, 577-578 (1966) ("strong proof" of hostility required where true owner is relative of claimants). See also Matter of the Estate of Qualteri, 757 P.2d 1093, 1095 (Colo. Ct. App. 1988) (court declines to adopt presumption of permissive use among family members, but holds that "strong proof" of hostility is required); Mullan v. Bank of Pasco County, 101 Fla. 1097, 1107 (1931) (possession by parent of child's land usually presumed permissive "subject to certain general exceptions" where family lived together as "homestead"); Parker v. Beckwith, 251 Mich. 434, 437 (1930) (father could not acquire title by adverse possession against daughter living in household with him during a portion of the time required to establish claim); Tyler v. Wright, 164 Mich. 606, 608 (1911) (close relationship of parent and child may raise presumption of permissive use, but relationship alone not conclusive where no evidence of their friendly relationship); O'Boyle v. McHugh, 66 Minn. 390, 391 (1896) (possession and cultivation of land by mother not enough to rebut presumption of permissive use vested in relationship with children); Chase v. Lavelle, 105 Neb. 796, 801 (1921) (use of land by child presumptively permissive); Demmitt v. McMillan, 16 Ohio App.3d 138, 141 (1984) (family relationship between parties imposes higher burden of proof on adverse claimant); Fehl v. Horst, 25
Haynes v. Strange, 232 Ark. 374, 337 S.W.2d 661 (1960). A widow whose dower remains unassigned cannot acquire title by adverse possession as against the heirs simply by remaining in the possession of her husband's land. Mullan v. Bank of Pasco County, 101 Fla. 1097, 133 So. 323 (1931); Lee v. Harris, 188 Tenn. 373, 219 S.W.2d 892 (1949); 3 Am.Jur.2d, Adverse Possession, § 235, p. 606. For a parallel rule in the context of co-tenants, see Tyson v. Jackson, 364 So.2d 1140 (Ala. 1978) [1978]. A widow who holds possession without color of title may obtain title by adverse possession against the heirs if the occupancy is open, notorious, visible, and by acts which unmistakenly convey notice to the heirs of her hostile holding, in defiance of their title.
We have construed this section to cast upon one who claims title by adverse possession for the required period to establish that fact by clear and positive proof. Avery v. Lock, 55 Fla. 612, 46 So. 844; Horton v. Smith-Richardson Inv. Co., 81 Fla. 255, 87 So. 905; Mullan v. Bank of Pasco County, 101 Fla. 1097, 133 So. 323. In Douglass v. Aldridge, 90 Fla. 51, 55, 105 So. 145, 146, we said:
Meriwether v. Vaulx, 37 Tenn. 300, 2 C.J.S., Adverse Possessions, sec. 115-A-2(a) 1, page 666; American Jurisprudence 860, 863 sections 121-125, notes 10 and 11. In Mullan v. Bank of Pasco County, 101 Fla. 1097, 133 So. 323, 324, it was held that "a widow whose dower has never been assigned to her cannot by merely remaining in possession of property that belonged to her deceased husband, acquire title by adverse possession, as against the heirs." In the case of Graves v. Causey, 170 N.C. 175, 86 S.E. 1030, 1031 it was held that "the widow does not hold adversely to the heirs, but in subserviency to their title, and those claiming under the widow generally stand in no better position, unless there has been some open unequivocal act on their part indicating that their possession is adverse."