Smith, J., (ai ter stating the facts). It is urged that the action of the court in directing the jury to return a verdict in favor of the plaintiffs is conclusive of the facts in issue in this case, and the-case of St. Louis Southwestern Ry. Co. v. Mulkey, 100 Ark. 71" date_filed="1911-07-10" court="Ark." case_name="St. Louis Southwestern Railway Co. v. Mulkey">100 Ark. 71, is cited in support of that contention. But Ave do not agree with them in this contention. In the MulTtey case, at the conclusion of all the evidence, both the plaintiffs and the defendants united in a request to the court that a verdict he directed by the court, each of the parties asked that that direction he given in its favor, and no other instructions were asked, and it was there said:
“It is also true that the parties had the right to waive a jury and submit the matter to the court for trial in the first instance, and, each having requested the court to direct a verdict in his favor, and not having requested any other instruction, they, in effect, agreed that the question at issue should he decided by the court, and waived the right to the decision of a jury, and the court’s decision and direction has the same effect as would have been given to the verdict of the jury upon the question at issue, without such direction.”
(1) To authorize the court to withdraw from the consideration and determination of the jury the questions of fact involved in the litigation, it is essential that, at the conclusion of all the evidence in the case, the plaintiff and defendant should each request the court to direct the verdict, and this request must not he accompanied by any request for instructions to the jury which would require the jury to determine any controverted question- of fact.
(2) These conditions were not met in the instant case, and the question of fact here involved should have been submitted to the jury for its determination. It is true that the record recites a request upon the part of the defendants for a directed verdict, hut this request was made when the plaintiffs had introduced the agreed statement of facts and the deeds which constituted their paper title and made a prima facie showing of the right to recover the possession of the land. That request was made by the defendants alone, and was properly refused by the court, and at the time it was made amounted to no more than an exception to plaintiff’s paper title and its sufficiency to make a prima facie case. Had- a verdict then been directed by the court, it must necessarily have been directed against the defendants, instead of in their fayor. Having refused this request, the court then permitted the defendants to offer their evidence in support of their allegation of adverse possession, and this lawsuit involves that question, and its decision will turn upon the final determination of that question. And all of the evidence bearing upon this issue was offered after the court’s refusal to direct a verdict at defendant’s request, and the only issue of fact in the case was raised after this refusal, and thereupon the plaintiffs alone requested the court to direct a verdict in their favor, and we think the court’s action in doing so was erroneous. The defendants denied that their possession was permissive, and alleged, on the contrary, that it was adverse and hostile, and we think that issue should have been submitted to the jury. The evidence is undisputed that Brooks’s possession was permissive, but it, by no means, follows that that of his vendees was, necessarily, likewise permissive. Brooks conveyed the land away in June, 1899, and those claiming through him have since been in the continuous possession of the disputed -strip of land, and w-e think they not only should have been permitted to testify as they did that their possession was as owners, but, further, that they should have been permitted to testify that they had no knowledge of any permission granted to Brooks, and that their possession was not in subordination to this permission.
(3) It is urged by appellees that the evidence in regard to the payment of taxes on the part of defendants and their predecessors in title was incompetent because no taxes were chargeable against the property of the church, and that the officers of the church could not, therefore, know, and were not charged with the duty of knowing, that these payments were being made. We think this evidence was competent, notwithstanding the fact that no taxes were chargeable against the property of the church. These tax payments were an evidence of an adverse holding, and the proof of the payments was admissible in support of that plea.
As the cause must be remanded for a new trial upon the question of fact as to whether or not the holding of the vendees of Brooks was adverse to the church and had ripened into title, we think it not improper to declare the law applicable to that issue, a clear statement of which is found in 1 Ruling Case Law, § 68, in the article on Adverse Possession and under the sub-title, “Whether Tenant May Hold Adversely,” and the rule was there announced as follows:
“As a general rule, the possession of a tenant is that of his landlord, and will be so deemed until the contrary appears. This rule affects all who may succeed to the possession, immediately or remotely, through or under the tenant. Therefore, so long as the relation of landlord and tenant exists, the tenant can not acquire an adverse title as against his landlord. This is merely one application of the rule that the tenant can not deny his landlord’s title. It is equally well settled that one who enters as tenant is not, merely because of that fact, precluded from subsequently holding adversely to his landlord. To do so, however, it is necessary to renounce the idea of holding as tenant, and to set up and assert an exclusive right in himself. It is also essential that the landlord should have actual notice of the tenant’s claim, or that the tenant’s acts of ownership should be of such an open, notorious, and hostile character that the landlord must have known of it. « Such conduct on the part of the tenant necessarily furnishes the -landlord with the legal title to enter and repossess himself of the premises. So, a third person may set up, as against the landlord, an outstanding-adverse title purchased from the tenant without notice of the tenancy.”
(4) The case of Singer v. Naron, 99 Ark. 446" date_filed="1911-06-19" court="Ark." case_name="Singer v. Naron">99 Ark. 446, discusses and reviews a number of cases involving the principle which will control in the decision of this case. The case just cited is authority for the statement that the church is not constructively affected with notice of the conveyances from Brooks to appellants and their predecessors in title from the mere fact that these deeds were recorded, because they are not'in the chain of the church’s title; but these deeds.are admissible in evidence for the purpose of showing the character of the possession. And it is true that it having been shown that Brooks entered into the permissive possession of the land, the presumption is that his subsequent possession and that of those claiming under him was' in subordination to the church’s title and pursuant to this permission. But this presumption may be overthrown by the evidence, and the jury should find that it was overthrown, and that the possession was adverse, if they should find the fact to be that the trustees of the church had actual notice of this adverse possession, or that defendants’ occupancy had been so inconsistent with the presumption of a permissive possession as to impute knowledge to the trustees of that hostility. If the jury should find the fact to be that appellant’s occupancy of the land was of such a character as to be entirely inconsistent with the idea of a permissive possession, and that it was so continued for the full statutory period,-then they should find for the appellants.
For the error indicated, the judgment will be reversed and the cause remanded for a new trial.