Britt v. Berry

133 Ark. 589 | Ark. | 1918

HART, J.,

(after stating the facts). (1) The decree of the chancellor was correct. The declarations of James Britt to Mrs. Marguth were made while he was in possession of the land and were admissible for the purpose of showing the intention with which he was occupying the land. This was not a suit against the executor or .'administrator of the estate of James Britt, deceased. Hence the objection that the testimony of Mrs. Marguth was incompetent as relating to transactions with the deceased James Britt is without merit. Williams v. Prioleau, 123 Ark 161.

(2) According to the testimony of Mrs. Marguth the entry of James Britt upon the strip of ground in controversy was permissive. At the time he spoke to her about it and acknowledged the title of the defendant he had not acquired title by adverse possession. There is nothing to show that he ever repudiated the title of the defendant. Therefore, it is clear that the statute of' limitations did not run in his lifetime. The rule is that where the entry is permissive the statute will not begin to run against the legal owner until an adverse holding is declared, and notice -of such change is brought to the knowledge of the owner. Gee v. Hatley, 114 Ark 376; Chicot Lumber Co. v. Dardell, 84 Ark. 140; Shirey v. Whitlow, 80 Ark. 444; McCutchen v. McCutchen (S. C.), 12 L. R. A. (N. S.) 1140, and case note and 1 Cyc. 1032.

(3) James Britt died on the 14th day of August, 1909, and Emma Britt took his property under his will. She commenced this suit on the 9th day of March, 1917, and claims that she has acquired title to the strip of ground in controversy by adverse possessioii since her husband’s death. There is nothing in the record to show that she ever notified the defendant that she was holding adversely to her. It was not necessary to prove a direct written or verbal notice; but it was incumbent upon the plaintiff to prove such notorious acts indicating a claim of ownership, as under the circumstances of the case, the defendant would be reasonably expected to take notice of. There was nothing done on the premises by the plaintiff nor any circumstance introduced in evidence which would have justified the court in finding that the plaintiff had repudiated the title of the defendant and had commenced to claim the strip of ground in controversy as her own.

Therefore the decree of the chancellor was correct and will be affirmed.