50 Ark. 68 | Ark. | 1887
The appellant, who was the plaintiff below, contends that when the owner of a tract of land sells, it by parol and lets the vendee in possession, the disseisin of the vendor is established- and continues as to the whole tract as long as the vendee maintains the actual possession of a part of it; and that the latter’s possession of a part under a claim of the whole is then a constructive adverse possession' of all.
The circuit court refused to adopt that view, but charged the jury that if they believed the plaintiff’s theory of the case,, they could consider the parol purchase for the purpose of ascertaining the character, but not the extent of the holdiDg> and that if they believed he had been in the actual possession of the cultivated land only on the tract, he could recover no more.
The testimony did not tend to show that he had done any act that was visible and notorious to manifest an intention to hold any part of the land except about four acres which» was enclosed and in cultivation. The question as to his claim of possesssion of this part of the tract was fairly submitted to the jury. As his possession of the rest of the tract was not actual, but [admitting his contention to be correct]] only drawn to or derived from the possession of the cultivated part under his parol purchase, it follows as of course that if he could not maintain his claim as to that part he must fail as to the whole. But. the verdict settles the question that he had not maintained the requisite possession of the cultivated land; that is, that there was no foundation to rest a claim of title to any part of it upon. If the verdict had been for the plaintiff for the cultivated land, the correctness of the courts charge as to the residue would be material. But when you deny, 3S the jury have done, his possession of the cultivated land, you leave him without a foot-hold any where. His injury by the court’s charge is therefore not. real but imaginary, even if his theory of the law is right.
Affirm.
