39 Kan. 14 | Kan. | 1888
“You are authorized by law to arbitrarily reject, without cause or reason, the testimony of any witness; but it is your duty to carefully consider and so far as possible harmonize all the testimony in the case, upon a basis of truth; but if you are unable to do this, then you are authorized, and it is your duty, to reject such of it as you think not entitled to credit.”
It is hardly necessary to call attention to the words preceding and those following the sentence in which the court says “You are authorized by law to arbitrarily reject, without cause or reason, the testimony of any witness,” to show that the court did really say “You are not authorized by law to arbitrarily reject the testimony of any witness.” The insertion of the word “not” at the proper place makes the whole of the first instruction consistent, harmonious, and legal, while by dropping it, the instruction is rendered inconsistent and illogical. We must assume that in an instruction which is universally given in a case tried by a jury, no such glaring error would occur, except through the carelessness of some one in making up the record. Especially is this so when it is apparent from the face of the instruction, and from the connecting words, that a mistake has been made in transcribing it.
The next complaint is respecting the fifth instruction given by the court, and that is as to the character of the adverse possession sufficient to constitute the bar of the statute. The court said that—
“If the defendants continuously occupied the land in controversy for fifteen years preceding the time of the commencement of the action, (29th day of November, 1884,) and after the 21st day of August, 1868, (the date of the patent to Pa-Ya,) under their several deeds of conveyance, and that such occupation of said lands by the defendants and those under whom*18 the defendants claim to hold was open, notorious, adverse, and continuous, then this action is barred, and the plaintiff cannot recover in this action.”
It is said that this is not a correct statement of the law of adverse possession; that the rule is, that the possession must be hostile in its inception, and so continue, without interruption, for the period of fifteen years; that it must be an actual, visible and exclusive possession, acquired and retained under a claim of title, inconsistent with that of the owner. This language must be construed in the light of the facts, as presented by the evidence in the case, because it is applied to them. The facts are, that in this case there was a hostile possession, adverse to that claimed by the plaintiff in error, and inconsistent with it. For a year, at least, each party resorted to every expedient to keep possession, so that if the instruction embodied a fair statement of the law, the facts justified the court in giving it to the jury. What is adverse possession ? It is occupancy without the permission, and not in subserviency to the rights of the true owner. The instruction given used the words open, notorious, adverse, and continuous, and hence this seems to be more a criticism as to the phraseology of the instruction than a substantial complaint. We think the instruction complained of is a fair statement of the law, and that it was called for by the evidence.
To thoroughly understand the complaint about the sixth instruction given by the court, a short statement of facts is necessary. The claim to title of the defendants in error, originated in a deed from Louise Pa-Ya to Josette Young, dated July 26, 1866. Josette Young conveyed to Wm. C. Plummer October 20, 1866; Wm. C. Plummer conveyed to Sarah Wright September 22, 1879; Sarah Wright executed a bond for a deed to one Tilden, January 18, 1883; Tilden subsequently assigned this bond for a deed to James Caldwell, who with his wife and Sarah R. Wright are defendants in this action. During the time that Mrs. Wright claimed to be the owner, she rented the land in controversy to one J. A. Workman, who moved upon it, and cultivated a part
“It is a general, rule founded on reasons of public policy, that a tenant shall never be permitted to controvert his landlord’s title, or set up against him a title acquired by himself during his tenancy, which is hostile in its character to that which he acknowledged when he accepted the demise.” (Taylor’s L. & T., § 605.)
“An adverse claimant who gets into possession of land by tampering with the tenant, cannot resist the landlord’s claim when the tenant himself could not. The tenant must also regard the interest of the landlord with respect to his right of possession, and give due notice of any attempt to dispossess him. And the attornment of a tenant to a stranger is absolutely void, and will not in anywise affect the possession of his landlord.” (Taylor’s L. & T., §180;.Comp. Lawsof 1885, ch. 55, §14.)
One of the grounds of the motion for a new trial was, that on the trial the plaintiff’ in error was sux’prised to learn of the non-x-esidence of Mx’s. Wx’ight, and this same fact was also ui’ged as a reason for a new trial, on the ground of newly-
We recommend an affirmance of the judgment.
By the Court: It is so ordered.