142 Ark. 426 | Ark. | 1920
This is an action in ejectment by F. A. Blackburn against J. Gr. Coffee to recover ten acres of land. At the conclusion of the evidence the court, directed a verdict for Coffee and Blackburn .has appealed.
According to the testimony of J. Gr. Coffee, he is seventy-three years of age and was born and raised on a tract of land which includes the strip in controversy. In about the year 1849, J. Gr. Wilson entered from the government the eighty acres of land on which Coffee now lives and it included the ten acres in controversy. In 1850 Wilson conveyed by deed to J. C. Baskin a tract of land, and they established what they called a conditional or division line. The deed to Baskin only conveyed thirty acres of the forty acres in which the ten-acre tract in controversy is situated; but the conditional or division line between the parties gave to Baskin the ten-acre tract in controversy. They built a division fence and a ditch, and the fence and ditch have been there ever since. Coffee plowed the land when he was only eight years of age and remembers that the fence was the division line between Wilson and his stepfather, J. O. Baskin. Baskin claimed the ten acres in controversy until the date of his death in 1863. Since that time Coffee and his grantors who obtained title from J. C. Baskin have cultivated up to the division line referred to and claim the land up to that line. Coffee has owned the place where he now lives for thirty-seven years.
J. M. Laster was a witness for the defendant and is seventy-eight years of age. According to his testimony, he first remembered being on the place sixty-five years ago and knew that the present fence was regarded as the •line between the parties. They each cultivated up to the fence. The fence as it was constructed then is at the same place except that Coffee has put in a lane and moved his fence back to that extent. Since he has known the land, each party has cultivated up to the cross fence, and it has been regarded as the line between the two places.
Two other men of about the same age as Laster, who had lived in the neighborhood all their lives, testified to substantially the same state of facts as Laster.
According to the testimony of the plaintiff, Blackburn, he had the land surveyed and found that the deed to Coffee and his grantors did not include the ten acres in controversy. Coffee had told him that his deed only called for thirty acres and that he did not claim any more land in that forty-acre tract. - The survey showed that the ten-acre tract in controversy was not included in the thirty acres called for in Coffee’s deed. Coffee then recognized that the ten acres in controversy belonged to Blackburn.
Blackburn offered to let Coffee have it for $500 and settle the matter. Coffee agreed 'to this, but subsequently backed out. Coffee denied having made this agreement with Blackburn.
The circuit court in directing a verdict excluded this testimony of Blackburn and this action of the court is now assigned as error calling for a reversal of the judgment.
The correctness of the ruling of the court in excluding Blackburn’s testimony depends upon whether or not Coffee’s grantors had already obtained title to the ten acres in controversy by adverse possession. This offer to purchase from Blackburn by Coffee would be to a certain extent a recognition of Blackburn’s claim and would have a tendency to show that Coffee’s possession was not adverse, if it had occurred before the statutory period had run and the title by adverse possession had been acquired. But if at the time it was made Coffee’s grantors had already been in possession of the land for over seven years claiming to hold it adversely and had thereby become vested with the title by limitation, a mere recognition of Blackburn’s title could not revest the title in him when the title had already been acquired by another by adverse possession. This court has expressly held that recognition of another’s title after the full statutory period has elapsed will not have that effect. Shirey v. Whitlow, 80 Ark. 445, and Hudson v. Stillwell, 80 Ark. 575. Here the undisputed evidence shows that the parties erected a fence and ditch on what they called the conditional or division line. It is evident, when reading the whole testimony, that they used the words, “conditional line and division line,” as meaning the same thing. It is true Baskin only got a deed from Wilson to thirty acres in the forty-acre tract in which the ten acres in controversy are situated; but the evidence shows that the parties at the time thought that the division fence was the line between the parties and that the deed to Baskin included the ten acres in controversy. Wilson and Baskin each cultivated the land on his side of the division fence. They regarded it as the line between them. Baskin intended to claim up to the fence. He believed that he owned the ten acres in controversy. It was within his enclosure, and he held it continuously under such claim of ownership until he died in 1863 without any recognition of the possible right of another thereto on account of any mistake in the boundary line. Therefore the holding and possession of Baskin was adverse. It was continued for more than seven years and had the effect to divest the title out of the former owner and invest it in Baskin. O’Neil v. Ross, 100 Ark. 555, and cases cited.
The testimony not only of Coffee, but of several other old men who had lived in the neighborhood all their lives, shows that when the fence was established in 1850 it was believed to be on the true line. Baskin claimed up to the fence. He claimed to a line visible and known, and his actual possession was coextensive with that boundary. He acquired title by adverse possession, and, under the authorities above cited, it operated as a complete investiture of title, and a. subsequent executory agreement with Blackburn to pay him1 for the ten acres in controversy would not remove the statute bar and reinvest the title in Blackburn.
It follows that the judgment will be affirmed.
